Bishop v The Queen

[2003] WASCA 79

BISHOP -v- THE QUEEN [2003] WASCA 79

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 79
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:128/2002	Heard:	6 MARCH 2003
Coram:	MALCOLM CJ MURRAY J PARKER J	Delivered:	11/04/03
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal allowed Each of 44 sentences reduced from 10 years to 8 years imprisonment Effective term to be served 16 years
Category:	A
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Parties:	KENNETH WILLIAM BISHOP THE QUEEN
Catchwords:	Criminal law Appeal against sentence Multiple offences of sexual penetration of a child under 16 years Offences against two daughters of de facto wife Whether offences of the worst type Whether sentences of 12 14 years appropriate for this type of offence Whether consideration of uncharged acts in sentencing Mitigation Totality principle
Legislation:	Nil
Case References:	Armstrong v The Queen, unreported; CCA SCt of WA; Library No 930401; 29 July 1993 Atholwood v The Queen (1999) 109 A Crim R 465 Austin v The Queen (1996) 87 A Crim R 570 B v The Queen [2002] WASCA 236 Boudville v The Queen [2001] WASCA 133 Braham (1994) 116 FLR 38 Cameron v The Queen (2002) 187 ALR 65 Chinnery v The Queen [2000] WASCA 295 Dauphin v The Queen [2002] WASCA 104 De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Dempsey v The Queen, unreported CCA SCt of WA; Library No 960059; 9 February 1996 Jarvis v The Queen (1993) 20 WAR 201 Mill v The Queen (1988) 166 CLR 59 Morley v The Queen [2001] WASCA 49 Podirsky v The Queen (1990) 3 WAR 128 Postiglione v The Queen (1997) 189 CLR 295 R v Herbert [2003] WASCA 27 R v Hough [2002] WASCA 42 R v Rossi, unreported, CCA SCt of SA; 20 April 1988 R v Valentine [2003] WASCA 7 Schloss v The Queen (1999) 100 A Crim R 80 Shepherdson v The Queen, unreported; CCA SCt of WA; Library No 920179; 27 March 1992 Siganto v R (1998) 194 CLR 656 Smith v The Queen, unreported; CCA SCt of WA; Library No 940285; 2 May 1994 The Queen v Ginder (1987) 23 A Crim R 1 Trescuri v The Queen [1999] WASCA 172 Woods v The Queen (1994) 14 WAR 341 Riciardello v The Queen [2001] WASCA 416 Thompson v The Queen [2000] WASCA 47 Van Den Ende v The Queen, unreported; CCA SCt of WA; Library No 950174; 13 April 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BISHOP -v- THE QUEEN [2003] WASCA 79 CORAM : MALCOLM CJ

MURRAY J
PARKER J

HEARD : 6 MARCH 2003 DELIVERED : 11 APRIL 2003 FILE NO/S : CCA 128 of 2002 BETWEEN : KENNETH WILLIAM BISHOP

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against sentence - Multiple offences of sexual penetration of a child under 16 years - Offences against two daughters of de facto wife - Whether offences of the worst type - Whether sentences of 12 - 14 years appropriate for this type of offence - Whether consideration of uncharged acts in sentencing - Mitigation - Totality principle

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Each of 44 sentences reduced from 10 years to 8 years imprisonment
Effective term to be served 16 years

Category: A

Representation:

Counsel:

Appellant : Mr R D Young
Respondent : Mr J Mactaggart

Solicitors:

Appellant : Gunning Young
Respondent : State Director of Public Prosecutions

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

Armstrong v The Queen, unreported; CCA SCt of WA; Library No 930401; 29 July 1993
Atholwood v The Queen (1999) 109 A Crim R 465
Austin v The Queen (1996) 87 A Crim R 570
B v The Queen [2002] WASCA 236
Boudville v The Queen [2001] WASCA 133
Braham (1994) 116 FLR 38
Cameron v The Queen (2002) 187 ALR 65
Chinnery v The Queen [2000] WASCA 295
Dauphin v The Queen [2002] WASCA 104
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dempsey v The Queen, unreported CCA SCt of WA; Library No 960059; 9 February 1996
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Morley v The Queen [2001] WASCA 49
Podirsky v The Queen (1990) 3 WAR 128


(Page 3)

Postiglione v The Queen (1997) 189 CLR 295
R v Herbert [2003] WASCA 27
R v Hough [2002] WASCA 42
R v Rossi, unreported, CCA SCt of SA; 20 April 1988
R v Valentine [2003] WASCA 7
Schloss v The Queen (1999) 100 A Crim R 80
Shepherdson v The Queen, unreported; CCA SCt of WA; Library No 920179; 27 March 1992
Siganto v R (1998) 194 CLR 656
Smith v The Queen, unreported; CCA SCt of WA; Library No 940285; 2 May 1994
The Queen v Ginder (1987) 23 A Crim R 1
Trescuri v The Queen [1999] WASCA 172
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Riciardello v The Queen [2001] WASCA 416
Thompson v The Queen [2000] WASCA 47
Van Den Ende v The Queen, unreported; CCA SCt of WA; Library No 950174; 13 April 1995

(Page 4)

1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be granted, the appeal allowed, the 44 sentences, each of imprisonment for 10 years set aside and sentences of 8 years' imprisonment substituted for each of the offences. The sentences in respect of counts 8 and 57 should be served cumulatively upon each other. The remaining sentences should be served concurrently with each other and with the sentences in respect of counts 8 and 57. The service of these sentences should be directed to commence from 23 January 2001 and the appellant should be eligible for parole in respect of each of the sentences.

2 I have reached this conclusion for the reasons to be published by Parker J.

3 MURRAY J: I too would allow this appeal and substitute the sentences proposed by Parker J, for the reasons given by his Honour. I am content that the final orders should be as his Honour proposes.

4 PARKER J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Groves DCJ in the District Court at Kalgoorlie on 8 July 2002.

5 The applicant had pleaded guilty on 27 June 2002 to a total of 44 counts of sexual penetration of a child under the age of 16; Criminal Code, s 329. The indictment had alleged a total of 65 counts but the applicant's pleas of guilty to the 44 counts were accepted by the Crown in full satisfaction of the indictment.

6 There were two complainants. They were the daughters of a woman with whom the applicant entered into a de facto relationship in 1994.

7 The older of the two girls I shall refer to as F. Thirty-six of the offences to which the applicant pleaded guilty related to F. Twenty-seven of these involved penile penetration of the vagina and the remaining nine digital penetration. The offences took place between June 1997 and January 1999 when F was aged 12 – 14 years.

8 The remaining eight counts to which the applicant pleaded guilty related to the younger girl whom I will refer to as A. The applicant pleaded guilty to seven counts of penile penetration of her vagina and one count of digital penetration. These offences occurred between February 1999 and January 2001 when the complainant was aged 13 – 15 years.

9 The remaining offences on the indictment to which the applicant did not enter a plea also related to the same two complainants.

(Page 5)

10 The applicant was sentenced to 10 years imprisonment in respect of each of the 44 offences. The first count of penile penetration in relation to each of the complainants was ordered to be served cumulatively upon the other. The remaining 42 sentences, each of 10 years imprisonment, were ordered to be served concurrently with each other and with the other two sentences. Thus the effective total sentence imposed was one of 20 years imprisonment. The applicant was made eligible for parole and service of the sentences was ordered to date from 23 January 2001, the date from which he had been in custody in respect of the offences.

11 At the time of sentencing the applicant was aged 63 years having been born in the United Kingdom in October 1938. He arrived in this country in 1969 with his wife and family and had worked here for a number of years as a bricklayer before becoming self-employed as a kangaroo shooter. This was his livelihood at the time of the offences. He had attended school in the United Kingdom to age 15 years. He had married in England and there were five children of that marriage. He had entered into a de facto relationship with the mother of the two complainants in 1994 and that relationship continued over the period during which these offences were committed. The applicant has a relatively small criminal record, having been sentenced to short terms of imprisonment in respect of cannabis and stealing in 1983 and some traffic offences. He had no previous convictions relevant to sexual misconduct the subject of the present offences.

Grounds of application

12 The grounds of appeal on which the applicant relies are:

"1. The learned Judge erred in finding that the offences represented one of the worst cases of this type to come before the courts of this State.

2. The learned Judge erred in taking into account uncharged acts in determining the degree of perversion or deviance involved.

3. The learned Judge erred in finding that an appropriate starting point for each offence was 12 to 14 years.

4. The learned Judge erred in misconstruing a submission made on behalf of the applicant, and concluding from that that the applicant was not remorseful.

(Page 6)

Particulars:

• A submission was made on behalf of the applicant to the effect that the applicant now realised that the gravamen of the offences was that the offending conduct had become a normal practice, and therefore the court could accept he was remorseful.

• The learned Judged misconstrued that submission as a submission that the applicant considered the conduct to be normal. As a result of that, the learned Judge found such a submission did not indicate remorse, but rather suggested the applicant was justifying his actions.

5. The learned Judge erred in finding that the age of the applicant (63 years) was of no weight.

6. The learned Judge erred in finding that the total sentence of 20 years did not offend the totality principle."

13 The principles to be applied in this case are well established and are not in dispute. It is unnecessary to restate them in these reasons. One convenient summary of them is to be found in Morley v The Queen [2001] WASCA 49 at [8].

Grounds 1, 2 and 3

14 It is convenient to consider these three grounds together as they are interrelated.

15 In his careful and comprehensive sentencing remarks his Honour gave consideration to the circumstances in which, and the means by which, the applicant had been able to engage in sexual activity with his two de facto daughters. In respect of each of the complainants the initial sexual penetration appears to have occurred at a time when the complainants' mother was staying away from the home. Thereafter, it occurred at times when she was temporarily absent, or at a variety of places away from the home.

16 The first occasion with F occurred before she had reached puberty and commenced on the first night of an absence of her mother on a trip to Perth. It was repeated on the following nights of her mother's absence.

(Page 7)

There had been earlier sexual familiarity by the applicant with F. F was warned by the applicant not to tell her mother. It is not suggested that actual physical violence was involved. The applicant simply overbore F, both mentally and physically, so that she came to submit to his behaviour. Acts of sexual penetration continued after F reached puberty and, indeed, there were times when the applicant persisted in penile penetration for his sexual satisfaction even though F was menstruating and despite her objections. There were times when to overcome reluctance by F, the applicant threatened F that there would be trouble, and, on one occasion, that if she didn't do as he required he would turn to her younger sister.

17 Eventually, the applicant did turn his attention to A. As was noted by his Honour, the applicant used mental and emotional pressure to achieve his objective. Having first told A that he was considering suicide and emphasising the effect this would have on her mother, he then asked A to think about what would make him happy. Then he told her she could make him happy. Two weeks later, when A's mother was in Perth, under the shadow of the earlier talk of suicide, the applicant told A that what would make him happy was to have sexual intercourse with A. By such means the applicant was able to condition A to allow him to have intercourse with her. As with F, the conduct occurred when A's mother was away from the house or when A was with the applicant at places away from the house.

18 Except for one occasion, it appears that the applicant's acts of intercourse with F occurred without protection against pregnancy, although he used condoms with A.

19 The conduct only came to an end because, eventually, F summoned up the courage to write to her mother disclosing his conduct. Even then F was not able to tell her mother face to face.

20 In respect of each complainant it appears there were occasions when the applicant paid sums of money after having sexual intercourse.

21 As his Honour noted, "the conduct was persistent with each girl over a lengthy period of time". By it, the applicant had corrupted each of the girls and had "denied them their innocence" at a critical stage of their upbringing as they reached their early teens.

22 There were victim impact statements before his Honour. The impact of this conduct on each of the complainants and the effect it is having on their lives is significant indeed. In the case of the F she has attempted to take her life and is receiving ongoing psychiatric care.

(Page 8)

23 There can be no doubt about the gravity of the nature and circumstances of these offences. In particular they involved the prolonged and manipulative abuse of the applicant's position of trust as de facto father. There was emotional manipulation and threats, as well as bribes. The offences were numerous and extended in the case of each complainant over a prolonged period. They commenced when each complainant was young and particularly vulnerable. The consequences are significant and ongoing. The view is well justified, indeed, that the applicant's conduct was very serious and warranted condign punishment.

24 It is convenient to draw attention to some established principles relevant to sentencing in respect of offences of this type. The dominant sentencing considerations are general and personal deterrence and the protection of vulnerable young children, mitigatory factors are therefore of diminished weight: R v Hough [2002] WASCA 42 at [74]; Woods v The Queen (1994) 14 WAR 341 at 345. Offences of a sexual character upon young children by an adult within a family environment involves an abuse of trust and is very serious: Woods v The Queen at 345; Trescuri v The Queen [1999] WASCA 172 at [21]; Chinnery v The Queen [2000] WASCA 295 at [28]. Where there are repeated sexual offences over a substantial period of time, an offender's level of culpability is carried to a higher level on the scale: Woods v The Queen at 346; Boudville v The Queen [2001] WASCA 133 at [30]; Dauphin v The Queen [2002] WASCA 104 at [17]. Where more than one child is involved as a victim of sexual abuse, the totality principle may have only a marginal effect in the reduction of the overall sentence. That is particularly so where each victim is aware of the offending conduct perpetrated on the other: De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996.

25 His Honour also considered each of the factors which this Court has identified as material to sentencing in cases of this type in Dempsey v The Queen, unreported CCA SCt of WA; Library No 960059; 9 February 1996, as well as a number of other relevant decisions of this Court. He noted in particular to the words of Ipp J, Pidgeon and Rowland JJ concurring, in Shepherdson v The Queen, unreported; CCA SCt of WA; Library No 920179; 27 March 1992:

"Where there are multiple offences of aggravated sexual assault, and where it is just to do so, and, in particular, subject to the totality principle, there is nothing to prevent a court from imposing a sentence of more than 20 years imprisonment."

(Page 9)

Those observations, however, were made in the course of noting that the maximum penalty for this type of offence is 20 years, and are intended to make clear that 20 years is not necessarily the maximum where there are multiple offences.

26 His Honour then said in his sentencing remarks:

"It has to be said on the other hand, and it will be self-apparent, that your conduct as a whole represents one of the worst of this type of case to come before this Court. You are or were a predator of the worst kind. The prosecutor described you as being 'an extremely dangerous paedophile'. You manipulated the girls and particularly the way in which you drew the younger girl, [A], into submitting to you. Your abuse was sustained and it was chronic. … Your exploitation and corruption of the complainants is of such an extreme nature that I am unable to avoid the finding that your level of culpability lies at the upper end of the scale for this type of offending."

27 This reasoning led his Honour to the view that:

" … In respect to each of the charges to which you have entered pleas of guilty, there being 44 in total, an appropriate sentence would be in the order of 12 to 14 years imprisonment. I will discount that by reason of your plea of guilty and such other mitigatory factors as there are, and I will record a sentence of 10 years imprisonment on each of the charges."

28 The applicant submits that there was error in this respect, both in the appreciation of the circumstances as one of the worst cases of this type and in the view that an appropriate starting point of each offence was 12 to 14 years.

29 As has been said on a number of occasions a tariff for offences of this type will remain "as illusive as ever": The Queen v Ginder (1987) 23 A Crim R 1, at 4, per Burt CJ. Essentially this is because the variable factors in cases of sexual assault are so numerous and have widely differing significance in different circumstances.

30 Nevertheless, this Court is not absolved from the responsibility of eliminating inconsistency so far as that is possible. Hence, it is relevant to bear in mind sentences in recent years in respect of conduct and offenders bearing some relationship to the present case. Over a dozen cases were

(Page 10)

referred to in this context in the course of submissions. Of these I would note the following.

31 The only case which involved an effective sentence of 20 years imprisonment, there being none that were higher, was B v The Queen [2002] WASCA 236. The offender had pleaded guilty to sexual relationships with four of his natural children. In the case of two of the children the offending commenced when they were aged 6 and involved both penile penetration of the vagina and the anus. There were offences against a male child aged 4 which included anal penetration, and the offences against a daughter aged 3 which included penetration. In the case of Armstrong v The Queen, unreported; CCA SCt of WA; Library No 930401; 29 July 1993 the offender pleaded guilty to sexual offences against two stepdaughters, and was convicted after trial of sexual offences against a third. The offences took place at various times over approximately four years. The offences were varied but in respect of each stepdaughter there was one conviction of aggravated sexual assault involving penile penetration of the vagina. Many of the sentences were ordered to be served concurrently and the individual terms were adjusted because of totality. The effective term to be served was 17 years 7 months. After taking into account credit given for time spent in custody the effective total was 19 years (NB there is a misprint on p 4 where 18 years is noted). An appeal against severity was dismissed. In Morley v The Queen (supra) the offender pleaded guilty to offences against two stepdaughters and a daughter each of whom was under 16 years of age. There were varied acts of sexual abuse, ranging from fondling to full sexual intercourse. Abuse in some form had commenced when each complainant was approximately 9 years of age. The conduct had commenced in 1976 and the complainants were mature adults when the offender reported it himself to the police following a confrontation by all three complainants. The offender pleaded guilty under the fast track system. Remorse was a significant factor in mitigation. On appeal a total effective sentence of 17 years was reduced to 13 years. Shepherdson v The Queen (supra) involved sexual offences against a daughter, commencing when she was 4 years old and continuing for two years, which involved penile penetration of the vagina and anus. There were also offences against two younger daughters, commencing when they were 2 and 4 years of age respectively, which involved penile penetration of the vagina. There was physical injury to the two younger children. There were also offences against his wife. The sentences were increased on appeal to an effective total of 15 years imprisonment, but this term was determined after giving considerable weight to significant mitigatory

(Page 11)

factors present in that case, including genuine remorse, and after allowing for time spent in custody pending sentence. Jarvis v The Queen (1993) 20 WAR 201 involved an offender who was convicted after trial of repeated conduct over four years involving anal penetration of a stepson and the penile penetration of a daughter who was aged 13. Jarvis was sentenced to sentences effectively totalling 8 years imprisonment in respect of the offences against his stepson and a further effective 7 years imprisonment, to be served cumulatively, for the offences against his daughter, ie an effective total of 15 years imprisonment. An appeal against the severity of these sentences was dismissed.

32 To these should be added a reference to Podirsky v The Queen (1990) 3 WAR 128 which is often regarded as exemplifying the worst category of this type of offending. There sexual demands, which increased with time to full sexual intercourse, were made on two stepdaughters. Force was used on occasions. Each stepdaughter became pregnant before reaching 15 years of age, and one of the stepdaughters had two further pregnancies before her 17th birthday. The sentencing outcome was distorted because later offences involving one stepdaughter were dealt with first. On appeal the sentences involving this stepdaughter were increased to an effective total equivalent to 10 years. Later, Podirsky was convicted of two counts of rape involving the other stepdaughter. One of these convictions was quashed on appeal and the sentence for the other was increased to 8 years imprisonment, without eligibility for parole. Thus the effective total was equivalent to 18 years imprisonment, in each case the sentences having been increased on appeal.

33 It is also to be born in mind that, Shepherdson and Podirsky were decisions where the Crown had appealed against the inadequacy of sentence. It was necessary for the court, in those cases, to reflect the restraint which is called for when a sentence is increased on appeal: R v Valentine [2003] WASCA 7 at [45]; R v Herbert [2003] WASCA 27 at [27].

34 The circumstances of each of these offences, which have been very briefly noted, varied considerably. In each case a number of other factors were of significant relevance to sentence. This brief comparison serves to reinforce the observations cited earlier from The Queen v Ginder, and illustrates how attempts to assess the relative seriousness of offences of this nature are almost inevitably unsatisfactory because of the widely varying individual circumstances.

(Page 12)

35 Nevertheless, what has been set out of the other cases serves to illustrate that there may well be circumstances of extreme gravity, particularly where very young children or pregnancies are involved, which are not found in the present case.

36 The conduct in the present case was very serious indeed for the reasons indicated earlier and undoubtedly has had and may well continue to have significantly harmful consequences for the unfortunate complainants. Without in any way meaning to detract from the force of those matters, the brief comparisons that have been made with other cases indicates that it is not particularly helpful or accurate to describe the present circumstances as one of the worst of this type. Further, the sentences that have prevailed in those other cases provides clear reason to question that the effective sentence of 20 years imprisonment imposed in the present case is appropriate.

37 Each of the pleas of guilty entered by the applicant was in respect of an offence involving either penile or digital penetration. A number of the other counts in the indictment, that were not the subject of pleas of guilty and which were not pressed by the Crown, involved sexual conduct of other descriptions. In the course of the sentencing remarks his Honour observed:

"In this case the conduct was persistent with both girls over a lengthy period of time and, as I have indicated, it involved matters other than the penile and digital penetration to which you have pleaded guilty. Of course, I am only to sentence you on those offences to which you have pleaded guilty but I can have regard to the fact that other types of offending was also involved."

His Honour's consideration of conduct other than penile and digital penetration is called in question by ground 2.

38 The transcript of the submissions as to sentence disclose that in outlining the facts it was indicated by prosecuting counsel that the 44 counts were merely representative of other similar acts and of a prolonged history of sexual abuse of the two complainants by the appellant

39 A video record of an interview of the applicant with the police was tendered, without objection, which included admissions by the applicant that his conduct was not confined to digital and penile vaginal penetration of the complainants. Further in the Crown's statement of the facts it was

(Page 13)

specifically said that there was also other conduct with the complainants. Cunnilingus, masturbation and oral sex were specifically mentioned. Again there was no objection to this by defence counsel. Those statements were not disputed. Neither was any submission made as to the use which his Honour might make of these facts.

40 Normally the indication of such related, though less serious, conduct might be seen as informing the nature of the relationships within which the 44 offences of sexual penetration occurred. While they might not be taken into account to increase the sentences warranted by the 44 offences themselves, such facts might well have some relevance to sentencing, for example, as negativing the factual foundation for submissions which might be advanced in mitigation.

41 In this case, however, the applicant had not pleaded guilty to any charges other than those alleging digital or penile vaginal penetration. Among the other counts on the indictment, which the Crown did not press, were counts involving cunnilingus and oral sex, and others which could have involved masturbation.

42 No attempt appears to have been made to clarify whether the conduct to which the Crown referred in outlining the facts was that which had been the foundation for counts to which the applicant pleaded not guilty. They may have been quite distinct, but the record leaves open the clear possibility that it was the same conduct.

43 The submissions of the respective parties on this appeal have failed to resolve this uncertainty. Even though no objection was taken by defence counsel who appeared at sentencing, on appeal it is objected that his Honour took into account acts which had been the subject of Not Guilty pleas. The Crown did not seek to contend to the contrary, but suggested that the pleas to the 44 counts had been accepted on the "understanding" that it would not be inhibited in relying on the full range of conduct. Whether that was the understanding is unresolved.

44 The result is unsatisfactory. There is a clear possibility that his Honour's assessment of the facts may have been affected by matters which ought not to have been taken into account.

45 I would note that ground 2 is less than ideally drawn to raise this precise issue but no objection is taken on that account. It is appropriate, in the circumstances, that the merits of the matters raised in argument be considered on their merits.

(Page 14)

46 Were any one of the 44 offences to be considered in isolation for the purposes of sentence it would normally be appropriate to concentrate more attention on the particular physical circumstances of that offence. In this respect, for example, it would normally be appropriate to regard more seriously an offence involving penile vaginal penetration, especially if there were ejaculation, than an offence involving only digital penetration. In the present circumstances, however, where his Honour had to deal with 44 like counts, such particular refinements of the circumstances of each charge become of less significance. The number, general nature and common circumstances of the offences assume more significance. It is in that sense that it may be accepted that an approximate range, which is not excessive for any one of the 44 counts, may be seen to be appropriate as a starting point for the sentencing process in respect of all 44 counts.

47 For the reasons given I am led to the conclusion that the sentences imposed are affected by error. Whilst not diminishing the very considerable gravity of this prolonged abuse of two vulnerable girls by their de facto father, his Honour's appreciation that this is one of the worst of this type of case suggests an understanding of the circumstances which is not justified. Further, conduct which was not the subject of pleas of guilty may well have influenced his Honour's appreciation of the circumstances.

48 By virtue of these matters, it appears that his Honour was wrongly led to the view that an appropriate starting point of each of these 44 offences was within a range of which 14 years imprisonment was the upper limit. In my respectful view this was excessive and outside an appropriate discretionary range.

Ground 4

49 Although the precise framing of this ground may not have anticipated the full breadth of the submissions advanced in support of it, the matter was argued by both parties on the basis that his Honour had erred in failing to give due weight to the pleas of guilty entered in this case and in not appreciating the extent to which they were indicative of genuine remorse.

50 In his sentencing remarks his Honour observed:

"In my own deliberations I have difficulty accepting … the proposition that you now display any remorse, having regard to

(Page 15)

the persistence of the offending, not just with one of the girls but with both of the girls …

It was said by your counsel that the sexual conduct became a course of normalcy for each girl and for you; that is, that what you were doing and what the girls were doing became what was normal. I observe that this conduct within any family environment is not normal and can never be regarded as being normal. I don't accept for a moment that this type of offending was in any way or could be regarded as being normal and clearly the statements of the girls in their victim impact statements indicating that they were not accepting any sort of normal relationship.

It might on the one hand be said it was normal because they didn't know any different, given that they were so young, between ages 12 and 14 and 15. That doesn't make it normal. You well knew at the time of offending that you were offending and abusing the girls and were doing that for your own sexual gratification. That you would consider your conduct normal does not indicate remorse but rather it suggests to me that you are justifying your actions in that way."

51 The original submission by counsel for the applicant to his Honour may well have been directed to diminishing the degree to which the applicant was conscious of the seriousness of his conduct over the period that it continued by virtue of the submitted circumstance that the conduct became a normal or regular feature of the family environment. Even were that to be accepted as a matter of fact, it would hardly justify leniency given the circumstances. The remarks of his Honour suggest, however, that the submission was understood to be that this conduct was, or had become, "normal", when viewed objectively as an appropriate standard of family behaviour. That understanding was rightly rejected. On any view the submission appears to have involved an attempt to explain or justify the persistence of what occurred. Such an attempt can hardly withstand the circumstances, which his Honour noted, that the applicant had turned his attentions from the older to the younger of the complainants after about two years, and then continued with the younger for yet a further two years. I am not persuaded that the sentences are affected by any error on this account.

52 Of greater significance for present purposes, however, are the circumstances of the pleas of guilty. In this regard his Honour observed:

(Page 16)

"I observe that when your pleas of guilty were entered on 27 June, in fact that date had been set aside for the pre-recording of the evidence of the girls.

They nevertheless had the fact of a trial or the prospect of a trial and the necessity of giving evidence hanging over their heads for quite some time and no doubt had been prepared for the occasion of coming to court to give their evidence in that way. It was only a matter of a few days before 27 June that the prosecution were advised that you were going to enter pleas of guilty to these charges.

So it is that your plea of guilty comes late in the day and does not warrant any substantial credit or reduction. It will be recognised, however, in the sentence to be imposed. It is accepted that the community has been spared the expense of a trial of these matters and to some extent there has been a sparing of the anguish for the girls in not having to go through the process of giving their evidence."

53 At the time of the investigation leading to the applicant being charged, which was in late January 2001, the applicant cooperated in the police investigation by participating in a lengthy videotaped record of interview in which he accepted inter alia that he had sexually abused both of the complainants by vaginal and digital penetration over a prolonged period. It is fair to say that generally his admissions were imprecise as to details. Initially, the charges laid by the police involved 121 counts, 89 concerning the complainant F and the remaining 32 counts the complainant A. It is accepted that initially there were difficulties in matching the charges and their particulars with the prosecution brief, and time was taken by defence counsel in resolving these difficulties. By letter dated 11 July 2001 the applicant's solicitor invited, on a without prejudice basis, consideration of a proposal that pleas of guilty be entered to some 61 of these various police charges "in full satisfaction of the matters alleged".

54 By letter dated 30 August 2001 the Director of Public Prosecutions indicated that the Crown would not accept the pleas offered as they fell well short of admissions that had been made in the interview of the applicant with the police. That letter advised that an indictment had been filed in the District Court. This alleged only 63 counts of sexual penetration and 2 further counts of indecent dealing. These represented the more serious of the original 121 charges. The letter set out detailed

(Page 17)

cross-references between each count and the Crown brief to assist defence counsel to identify the incident to which each count related.

55 It is submitted that it was then necessary for defence counsel and the applicant to go through the Crown brief and the videotaped interview, correlating them with the counts in the indictment. This was delayed for a time because the videotapes of the interview had not been delivered to the prison.

56 Following this process, on 19 November 2001 the applicant instructed his solicitor that he would plead guilty to 18 of the 65 counts in the indictment. This was communicated by his solicitor to the Director of Public Prosecutions. When the applicant was before the Court on 20 January 2002 he entered pleas of guilty to those 18 counts, all of which were counts of vaginal penetration, 11 counts in relation to the complainant F, and 8 counts in relation to the complainant A.

57 The 18 pleas having been entered, the accused was remanded to a status conference. In the intervening period, there having been no change in the applicant's attitude regarding the remaining 47 counts, the Director of Public Prosecutions applied for dates to pre-record the evidence, initially of A but later also of F. A date was fixed for late in June. On 11 June 2002 the applicant instructed his solicitor that he would be prepared to plead guilty to all counts involving vaginal penetration of the two complainants. This was communicated to the Director of Public Prosecutions by the applicant's solicitor the following day. These pleas were proposed on the basis that, if they were accepted in full satisfaction of the indictment, it would avoid the need for the complainants to pre-record their evidence. It was made clear, however, that the applicant would maintain pleas of not guilty in respect of all other counts, including those alleging oral and anal penetration. This proposal having been accepted by the Crown, the applicant entered further pleas of guilty before his Honour on 27 June 2002 and so came to be sentenced in respect of the 44 counts. The complainants did not pre-record their evidence.

58 It is well established that a plea of guilty is a matter properly to be taken into account in mitigation of sentence. As was said by Ipp J in Atholwood v The Queen (1999) 109 A Crim R 465 at 467:

"A bare plea of guilty (that is, a plea that is not accompanied by genuine remorse), even when made at the last moment, is a mitigating factor as it avoids the expense of a defended trial,

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inconvenience to witnesses and delay to other cases in the list. This is so even when the case of the prosecution is strong …"

59 The justification for this has been variously explained. A majority of the High Court put it somewhat succinctly in Siganto v R (1998) 194 CLR 656 at 663-4 [22]:

" … a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."

60 The view has since been expressed that in some circumstances a plea of guilty may also indicate an acceptance of responsibility, and that rather than "saving the community the expense of a contested trial" a preferable justification is that a plea of guilty may indicate a "willingness to facilitate the course of justice"; Cameron v The Queen (2002) 187 ALR 65 at 68 [11] and [14] per Gaudron, Gummow and Callinan JJ.

61 It is clear, however, in the words of Kirby J in Cameron v The Queen at 80 [65] that:

To the extent that common law sentencing principles elaborate statutory provisions, they operate within a context that recognises the need for appellate courts to respect the discretion belonging to a sentencing judge. Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations. Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances. It is not the law that a sentencing judge must exercise a discretion to provide a given reduction in sentence for a plea of guilty. If a reduction is properly available, the sentencing judge may provide for it in the course of performing the complex task of imposing criminal punishment.

62 In determining in a particular case the extent to which a sentence that is otherwise appropriate should be mitigated by virtue of a plea of guilty, the issue is:

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" … 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": Cameron v R at 70 [22] per McHugh J (in dissent on the merits); Atholwood v The Queen (1999) 109 A Crim R 45 at 468 per Ipp J.

63 It is clear enough from the brief sentencing remarks in this case, in my view, that his Honour recognised and sought to apply these principles. The essential issue is whether, in doing so, he inadequately appreciated the circumstances which caused the pleas of guilty to be delayed and thereby failed to recognise, or to recognise adequately, that they reflected genuine remorse. It is the submission that they were entered progressively but in each case at what may be regarded as the first reasonable opportunity, or at least that they were not unreasonably delayed, and that when the circumstances are fully appreciated the pleas of guilty do indicate genuine remorse.

64 It is submitted for the applicant that it might be accepted, at the least, that from the outset the applicant had been prepared to admit the essential nature of his guilty conduct and that for the most part the delays that ensued were substantially due to the difficulties experienced by the applicant's legal advisors and the applicant in reconciling the Crown brief, the record of interview, the counts in the indictment and their particulars. While the applicant clearly did not enter the pleas of guilty at the earliest opportunity, or even at an early opportunity, it is submitted, nevertheless, that in the somewhat unusual circumstances it cannot reasonably be said that the applicant was not motivated at least in part by a measure of remorse in entering the pleas of guilty to the 44 counts.

65 While the applicant showed a readiness to cooperate and a frankness about many matters when first interviewed by the police, that attitude is not evident in all that followed. It may be accepted that, until the indictment was filed and the applicant and his solicitor were provided with cross-referencing information to the Crown brief on 30 August 2001, the delay was attributable, at least substantially, to uncertainty about the charges being pursued. Thereafter, it is said there was delay in getting access in prison to the video record of the police interview. It is to be observed that the concern to study the videotaped interview, while important forensically, appears to be more indicative of a concern to assess the strength of the Crown case in respect of each count than

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indicative of an acceptance of responsibility and a willingness to frankly admit his conduct involving each of the complainants.

66 Following this, an indication was given on 19 November 2001 that pleas would be entered to 18 of the 65 counts. It is said that these 18 counts were each of an offence involving vaginal penetration at the family home. No pleas were proposed in respect of any conduct, other than vaginal penetration, or of any offence even involving vaginal penetration alleged to have occurred away from the home.

67 While those 18 pleas were entered in January 2002, there was no change in respect of the applicant's position between 19 November 2001 and 12 June 2002 when, for the first time, he instructed that he would enter pleas to all counts, wherever occurring, involving vaginal penetration, but not to any of the other counts. It is not suggested that anything material occurred, affecting the evidence to be led by the Crown, or the charges, over those 7 months. The change proposed on 12 June 2002 appears to be related to the then imminent listing for the pre-recording of the evidence of the complainants. Even then, pleas to a total of 44 counts were proposed only on the basis that they be accepted in full satisfaction of the indictment.

68 In my view, the pleas proposed on 19 November 2001, and the justification offered for them, and the further pleas proposed on 12 June 2002, and the justification offered for them, are indicative of a concern to achieve an outcome as favourable for the applicant as could be secured, rather than a frank and ready acceptance of responsibility. There was evidence capable of supporting the 65 counts in the indictment. It was clear and strong at least in respect of the 44 counts to which pleas of guilty were eventually entered.

69 The appearance is of a dominant concern for self-interest by the applicant, rather than concern for the complainants and remorse for the harm that had occurred to them and for their ongoing anguish.

70 Of course, by accepting the pleas proposed by the applicant on 12 June 2002, the complainants were spared the further stress of giving evidence of these distressing events. It is not apparent in the circumstances, however, that this motivated the applicant. In these circumstances I am not persuaded that error is demonstrated by his Honour's failure to accept that by the 44 pleas of guilty the applicant evidenced genuine remorse such as should have been recognised in the deduction made by his Honour in respect of the pleas of guilty.

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71 His Honour did correctly appreciate that the eventual pleas of guilty had the effect that the complainants were spared the ordeal of giving evidence in a trial and that the community was spared the expense of a trial and that there was, therefore, a public interest in the sentences imposed being reduced on account of the pleas of guilty.

72 It is not apparent, in my view, that his Honour's observations as to the significance of the pleas of guilty reveal any error of principle or fact in the weight to be attached to the pleas of guilty.

Ground 5

73 It is contended by ground 5 that his Honour erred in failing to accord significant weight in mitigation of sentence to the age of the applicant who is now 63 years of age.

74 His Honour expressly noted the submission and the age of the applicant, but was not persuaded in the present case that this consideration carried any weight in the exercise of his sentencing discretion.

75 It is not disputed that old age, particularly when combined with ill health, may properly be given significance as a mitigating factor. It provides a basis on which the Court, in the exercise of mercy, may impose a shorter sentence than might otherwise be appropriate. In a particular case it may also be relevant to a consideration of the question, which is of particular significance to the totality principle, namely, whether the total sentence imposed is a crushing one. In the case of an offender of very advanced age a sentence that would otherwise be appropriate may, in truth, be crushing in the relevant sense because of the prospect of death before the term has been served. These matters have been recognised in decisions such as Braham (1994) 116 FLR 38; Smith v The Queen, unreported; CCA SCt of WA; Library No 940285; 2 May 1994; Austin v The Queen (1996) 87 A Crim R 570; Schloss v The Queen (1999) 100 A Crim R 80.

76 In the present case, however, the applicant is only 63 years of age. It was not advanced in mitigation that he is suffering any particular ill health or that his life expectancy is other than normal. The contrast is clear, in my view, between the applicant's circumstances and those in the cases to which I have adverted. For example, Austin was aged 87 years and was shown to be in ill health.

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77 I am not persuaded that his Honour erred in the present circumstances in failing to regard the age of the applicant as a significant mitigating factor.

Ground 6 – Totality

78 It is submitted by ground 6 that the effective total sentence of 20 years imprisonment offends the totality principle.

79 It is clear from his sentencing remarks that his Honour was well conscious of the totality principle and the orders he made, by which all of the sentences imposed except for two were to be served concurrently, sought to give effect to that principle.

80 The unreported sentencing remarks of King CJ in R v Rossi, unreported, CCA SCt of SA; 20 April 1988 are often cited as a concise statement of the totality principle. The learned Chief Justice said:

"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."

81 As was observed by McHugh J in Postiglione v The Queen (1997) 189 CLR 295 at 308:

"The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."

In a passage from Thomas; Principles of Sentencing (2nd ed, 1979) at p 56, which was cited with approval by the High Court in Mill v The Queen (1988) 166 CLR 59 at 62 – 63, it is said:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and

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consider whether the aggregate is 'just and appropriate'. … It is always necessary for the court to take a last look at the total just to see whether it looks wrong. … It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

82 In this last respect his Honour specifically had a "last look".

83 This is not a case, therefore, where there has been any failure to recognise the need to apply the totality principle or any failure to observe the need for a "last look".

84 Nevertheless, without diminishing the seriousness of the conduct of the applicant in respect of his two de facto daughters in these 44 offences, there is reason for concern that a total effective sentence of 20 years is excessive. It is certainly out of keeping with the general trend of sentencing in cases which are somewhat similar as has been noted earlier in these reasons. The particular circumstances of this case, serious as they are, provide no apparent justification for the extent to which the total effective sentence in the case of the applicant is greater than sentences in somewhat similar cases.

85 In my respectful view, the view taken by his Honour that the applicant's conduct as a whole represented one of the worst of this type of case to come before the Court represented, for the reasons indicated earlier, an appreciation of the seriousness of the criminality of the applicant in these 44 offences which is, in truth, too severe. Had that observation been fully justified it could well have provided an adequate foundation for a total effective sentence of 20 years, or even greater. That, however, is not the case.

The outcome in this appeal

86 For the reasons given when considering grounds 1, 2, 3 and 6, I am persuaded the sentences imposed should be set aside. It is necessary, therefore, to exercise afresh the sentencing discretion.

87 Taking into account what has been discussed in these reasons, especially as to the nature and seriousness of the offences, the pleas of guilty, and the very limited other mitigating circumstances, and otherwise accepting and applying the considerations which his Honour weighed, it is my view that sentences of 8 years imprisonment are appropriate in respect of each of the 44 offences in this case. Taken alone, many of the present

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offences would well warrant a longer term. Like his Honour, it is my view that the applicant's abuse of each of the two complainants ought to be separately reflected in the structure of the sentences. For this purpose, as did his Honour, I consider it appropriate that the first offence of penile penetration against each of the two complainants should be marked by a sentence of 8 years imprisonment, those two sentences to be served cumulatively. Having further regard to the totality principle, the remaining 42 sentences each of 8 years imprisonment should be served concurrently with each other and with the first two terms. Hence, the total effective sentence, in my view, should be 16 years imprisonment, rather than 20 years imprisonment. In my view a total effective sentence of 16 years more appropriately reflects the totality of the applicant's criminality in this case.

Orders

88 For these reasons the application for leave to appeal should be granted, the appeal allowed, the 44 sentences each of 10 years imprisonment imposed on 8 July 2002 should be set aside and there should be substituted sentences of 8 years imprisonment for each of the offences. The sentences in respect of count 8 and count 57 should be served cumulatively upon each other. The remaining sentences should be served concurrently with each other, and concurrently with the sentences on counts 8 and 57. Service of these sentences should date from 23 January 2001 and the applicant should be eligible for parole in respect of each of the sentences.