Bosworth v The Queen
[2004] WASCA 43
•15 MARCH 2004
BOSWORTH -v- THE QUEEN [2004] WASCA 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 43 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:79/2003 | 11 NOVEMBER 2003 | |
| Coram: | MALCOLM CJ SCOTT J MCKECHNIE J | 15/03/04 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against sentence dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL JAMES BOSWORTH THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Sexual offences involving children Principles applicable |
Legislation: | Criminal Code (WA), s 183, s 197 |
Case References: | Bell v The Queen [2001] WASCA 40 Boudville v The Queen [2001] WASCA 133 Broome v The Queen [1999] WASCA 202 Chinnery v The Queen [2000] WASCA 295 Dauphin v The Queen [2002] WASCA 104 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Morley v The Queen [2001] WASCA 49 Pearce v The Queen [1998] HCA 57 Podirsky v The Queen (1990) 3 WAR 128 R H McL v The Queen [2000] HCA 46 R v Chilvers [2003] WASCA 87 R v GP (1997) 18 WAR 196 R v Hough [2002] WASCA 42 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 R v Peterson [1984] WAR 329 Squance v The Queen, unreported; CCA SCt of WA; Library No 8276; 31 May 1990 Trescuri v The Queen [1999] WASCA 172 Woods v The Queen (1994) 14 WAR 341 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BOSWORTH -v- THE QUEEN [2004] WASCA 43 CORAM : MALCOLM CJ
- SCOTT J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Sexual offences involving children - Principles applicable
Legislation:
Criminal Code (WA), s 183, s 197
Result:
Application for leave to appeal against sentence dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr M J Bowden
Respondent : Mr R E Cock QC & Mr D N Ryan
Solicitors:
Applicant : Cannon Bowden & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bell v The Queen [2001] WASCA 40
Boudville v The Queen [2001] WASCA 133
Broome v The Queen [1999] WASCA 202
Chinnery v The Queen [2000] WASCA 295
Dauphin v The Queen [2002] WASCA 104
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Morley v The Queen [2001] WASCA 49
Pearce v The Queen [1998] HCA 57
Podirsky v The Queen (1990) 3 WAR 128
R H McL v The Queen [2000] HCA 46
R v Chilvers [2003] WASCA 87
R v GP (1997) 18 WAR 196
R v Hough [2002] WASCA 42
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
R v Peterson [1984] WAR 329
Squance v The Queen, unreported; CCA SCt of WA; Library No 8276; 31 May 1990
Trescuri v The Queen [1999] WASCA 172
Woods v The Queen (1994) 14 WAR 341
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Case(s) also cited:
Nil
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1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 19 May 2003, the applicant pleaded guilty in the District Court and was convicted on seven counts of indecently dealing with a child under the age of 14 years and three counts of carnal knowledge of a girl he knew to be his daughter.
2 The facts as stated by the Crown were that between 4 March and 1 November 1985, when the complainant was aged 11 years and lived with her natural father and brother, a series of offences was committed by the applicant on the complainant. The offence the subject of count 1 and all of the other offences on the indictment were alleged to have been committed on dates unknown in the relevant period between 4 March and 1 November 1988.
3 The offences the subject of counts 1 to 4 were all committed on the same occasion. Count 1 involved the applicant unlawfully and indecently assaulting the complainant by touching her breasts, contrary to s 183 of the Criminal Code (WA) ("the Code"). The offences then progressed in seriousness to count 2, touching the complainant's vagina, count 3, licking the complainant's vagina, and then count 4, introducing his penis into the complainant's mouth and suggesting to her that she "taste" him just as he had tasted her. Each of these offences was contrary to s 183. Count 5 involved an act of digital penetration of the complainant's vagina.
4 Counts 6, 7 and 8 each involved an offence of unlawful carnal knowledge by the applicant with his daughter contrary to s 197 of the Code. The offence the subject of count 6 involved the applicant penetrating the complainant's vagina with his penis and ejaculating into her vagina and was committed on the same date and at the same place as the offence the subject of count 5. The offences the subject of counts 7 and 8 were repetitions of the same conduct the subject of count 6 on two other occasions. Count 7 occurred on a date unknown between 1 September 1988 and 31 October 1988, and count 8 on 24 December 1988. Each of the three offences of unlawful carnal knowledge was contrary to s 197 of the Code and constituted an offence for which the maximum penalty is 20 years.
5 Count 9 was that on a date unknown between 4 March 1989 and 31 December 1989 at Waroona, the applicant unlawfully and indecently dealt with the complainant, a child under the age of 14 years, by touching her breasts with an electrical appliance. The offence the subject of count 10 was a further offence of unlawful and indecent dealing with the complainant, a child under the age of 14 years, by touching her breasts
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- with his hand, contrary to s 183 of the Code. The facts stated by the Crown included that in the relevant period in 1988 and 1989 when the complainant lived with the applicant, the applicant performed sexual acts on her on a regular basis. She said that once or twice a week, he would wake her up during the night and have sex with her. She was unable to give particulars of all the offences during the relevant period.
6 Counsel for the applicant informed the Commissioner that the facts as stated by the Crown were admitted as were the contents of the antecedent report and that:
"Whatever is contained in the pre-sentence report which might suggest that [the applicant] doesn't accept the facts as outlined is incorrect and he certainly does accept what his daughter has said and pleads guilty to the offences as outlined by the learned prosecutor."
7 The facts found by the learned Commissioner were that the complainant, the applicant's daughter, lived with him between late 1987 and the early part of 1989, following a separation between the applicant and his then wife. The learned Commissioner described each of the offences as serious, but regarded the offences the subject of counts 6, 7 and 8, being, respectively, the offences of unlawful carnal knowledge, sexual intercourse and penile-vaginal intercourse with ejaculation, as the three most serious offences to which the applicant had pleaded guilty. The learned Commissioner said that offences of the kind committed were particularly serious because they involved serious breaches of trust. As the Commissioner said:
"Here we have a situation where an 11-year-old going on to 12-year-old girl has been living with her father. She is entitled to trust her own father, but regrettably you breached that trust in the most serious way possible by committing these acts of a sexual nature against her over a period of about 2 years, so the offences are particularly serious by reason of their nature, factual circumstances and by them constituting serious breaches of trust on your part. They are offences committed by you against your own daughter. She was vulnerable, not just because she was your daughter, but because she was a very young child and your children, particularly young girls, need to be protected and that's the purpose behind the laws – to protect young, innocent children."
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8 At the time the offences were committed, the applicant was aged about 31 and the complainant was aged 11 when the course of offending began, and aged 12 when it ended. The offences occurred over a period of approximately two years.
9 It was in the applicant's favour that the applicant pleaded guilty and acknowledged the truth of the allegations made by the complainant. The Commissioner, rightly in my opinion, commented that this showed a significant amount of remorse on the applicant's part, but that had to be balanced by the complainant's statement that she was sexually abused once or twice a week over the two-year period in question. In that context, the learned Commissioner said:
"I need to bear in mind, and for your information and others I do bear in mind, that I have these 10 charges before me and it's these 10 charges that I have to sentence you for, not for other things that aren't the subject of a charge on the indictment, but the point has to be made that you don't present as someone who has committed each and all of these 10 offences and that these 10 should be considered in isolation, but there's just nothing else. It's not one of those situations, so it needs to be understood that I'm sentencing you bearing in mind that these offences aren't isolated and it's not as if you can get any credit or that it can be submitted by way of mitigation that these 10 stand alone. They don't.
That's not to say that I'm increasing the sentence that I would otherwise impose on these 10 because I am mindful of the background. I am not approaching it that way. I am approaching it on the basis that when I deal with these 10 offences you won't receive any discount by way of mitigation that they stand alone and there's nothing in the background."
10 The learned Commissioner then referred to the need for general deterrence for offences of this type and, in particular, the offences the subject of counts 6, 7 and 8.
11 The Commissioner took into account the fact that the offences occurred approximately 14 years earlier and had not been repeated. His Honour took into account that the passage of such a period without reoffending in the same or a similar way showed that the applicant had:
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- " … gone a long way down the path of rehabilitation and I think that is consistent with the comments made by the forensic pathologist [sic psychologist] that you represent now a relatively low risk of reoffending of this sort, so I accept that, but nonetheless general deterrence needs to be given proper weight, particularly given the serious nature of each and every one of the offences."
12 At the time of sentencing the applicant was 45 years of age with a good employment record. He was licensed to operate a crane, a forklift and a bobcat and had been in regular employment. He had a minimal prior record, including some minor traffic and drug offences, but, as the Commissioner put it, "nothing of a serious nature". It was said on the applicant's behalf that in the relevant two-year period he was acting out of character because of his separation from his wife, which led to a period of abuse of cannabis and alcohol, which played its part in the applicant making serious errors of judgment.
13 The learned Commissioner specifically noted that the applicant had pleaded guilty and co-operated with the authorities. He had attended counselling and the psychologist's report led the Commissioner to conclude that the applicant had taken serious steps towards addressing his problem.
14 The learned Commissioner also had the benefit of a victim impact statement from the complainant. As to this, the learned Commissioner said:
"It's clear that these offences have had a profound effect on your daughter. I think it fair to say that even absent the victim impact statement, one would have reasonably expected her to have been severely affected by your offending against her in the way you did over the period of about 2 years or thereabouts.
It can be noted from her victim impact statement that the offences have severely impacted on her. She was promiscuous in her teenage years. There have been problems within her own marriage. She has become and has been distrustful generally of people and in particular of the father of her own child and she suffers mood swings."
15 The Commissioner commented that this was a common reaction in such cases. The Commissioner concluded that immediate imprisonment
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- was the only appropriate disposition and that it would not be appropriate to suspend any of the sentences. He also said:
" … I am mindful that the immediate imprisonment will have a profound effect not just on you, but also people close to you. Indeed, it has probably been something that not just you but others have been dreading, but at the end of the day the factual circumstances, the nature of the offences and the factual circumstances that the offences occurred over a period of about 2 years overwhelm matters personal to you and matters favourable to you."
"Can I go through each and every one of the 10 charges in turn and indicate to you the sentence that I am imposing. On count 1, the touching of the breast, I am discounting a period of imprisonment of 9 months to a period of 6 months' imprisonment. Count 2, the touching of the vagina, I'm discounting a period of 1 year's imprisonment down to 9 months' imprisonment because of your plea of guilty.
On count 3, the licking of the vagina, there's a period of 3 years' imprisonment discounted to 2 years again because of your plea of guilty. On count 4 there's a period of 3 years' imprisonment, but because of your plea of guilty and cooperation that is discounted down to 2 years' imprisonment. On count 5, that is, the penetration of the vagina with your finger - I should just say that count 4 was the introduction of your penis into her mouth. Moving back to count 5, the penetration of her vagina with your finger, there's a period of 3 years, but that's discounted because of your plea of guilty and cooperation down to a period of 2 years' immediate imprisonment.
On each and every one of counts 6, 7, and 8, the offences of carnal knowledge of your own daughter, there is a period of imprisonment on each and all three of those or every one of those of 8 years discounted to a period of 5 years' imprisonment and that reflects your plea of guilty. It should be noted that that discount there is above a third, just slightly above a third. I just make the point that by you pleading guilty in these particular cases, it has meant that your daughter who is now some 14,
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- 15 years older than what she was at the time - she is now in her mid twenties or thereabouts. By pleading guilty you have avoided the necessity of a trial which is, I think, something that would have caused great distress to her. I am mindful of that and so I am giving you credit for that. The credit is slightly above a third, but thereabouts, so on each and all of those three offences the period of imprisonment is 5 years.
On count 9 there's a period of 1 and a half years' imprisonment discounted to 1 year's imprisonment because of your plea of guilty and cooperation and lastly on count 10, that is, the touching of the breast - the previous one related to the touching of the breast with the appliance. On count 10, the touching of the breast, there's a period of 9 months discounted down to 6 months because of your early plea of guilty. On each and all of these sentences you are eligible for parole.
The question is, to what extent should any one or more of these sentences be cumulative of concurrent on the others. In relation to counts 1, 2, 3 and 4, all of those offences occurred on the same occasion. As we go from 1 to 2, 2 to 3, 3 to 4, each was a progression that went from bad to worse. All four of those sentences are to be served concurrently.
Can I move to counts 6, 7, and 8. These offences occurred on different occasions and count 8 occurred on the last occasion. I am ordering that on counts 6 and 7, those periods of imprisonment be served concurrently, but count 8, that sentence of 5 years is to be served cumulative to count 7, so that gives a total of 10 years' imprisonment, you being eligible for parole on counts 6, 7 and 8.
Going back to count 4 - you recall I said 1, 2, 3 and 4 are all to be concurrent. Count 4, which is one of the most serious of that group for which I imposed a sentence of 3 years' imprisonment discounted down to 2 years' imprisonment - that 2 years on count 4 is cumulative to counts 7 and 8, so that takes the time from 10 years up to 12 years' imprisonment. Count 5, count 9 and count 10, those periods of imprisonment are all to be served concurrently.
In arriving at this total period of 12 years' imprisonment, I have had regard to the totality of your criminality against your
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- daughter over this period of 2 years and it's that period of time that I think properly reflects the full extent of your criminality over that period of time. The net effect of all of these sentences is a period of 12 years' imprisonment, you being eligible for parole."
17 The applicant had spent no time in custody. The end result was that the applicant was sentenced to a total of 12 years' imprisonment with eligibility for parole.
18 The applicant sought leave to appeal on two grounds, namely:
"(1) The learned sentencing Judge erred in imposing a sentence of 12 years imprisonment with parole eligibility in that the sentence imposed was manifestly excessive in the circumstances.
(2) The learned sentencing Judge erred in imposing a sentence of 12 years imprisonment in that he failed to give due weight to the mitigatory factors on behalf of the offender in particular his age, his plea of guilty, genuine remorse, full time employment, lack of re-offending since commission of the offence, effects of rehabilitating himself over approximately a 13 year period since the offending behaviour and immediate acceptance of responsibility."
19 The way in which these grounds are formulated is misconceived. There was no sentence of 12 years imposed. That was the total of the various sentences imposed. The question to which both grounds (1) and (2) was directed was whether the totality of the sentences imposed was excessive in the context of the application of the totality principle. This was reflected in the submission that the total sentence imposed suggested a starting point of 19 years taking account of the discounts commonly given for a plea of guilty facilitating the course of justice and the evidence of rehabilitation.
20 In my opinion, the approach adopted by the learned Commissioner of determining an appropriate sentence for each of the offences and then adjusting or structuring of the sentences with a view to determining an appropriate overall sentence in compliance with the method of application of the totality principle was correct: Mill v The Queen (1988) 166 CLR 59 at 63 per Wilson, Deane, Dawson, toohey and Gaudron JJ; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623 – 624 per
(Page 11)
- McHugh, Hayne and Callinan JJ; R H McL v The Queen [2000] HCA 46; (2000) 174 ALR 1 at [15] – [17] per Gleeson CJ, Gaudron and Callinan JJ.
21 It follows that the Court of Criminal Appeal will not interfere with the exercise by a sentencing Judge of the discretion involved in imposing a sentence merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: House v The King (1936) 55 CLR 499; and Lowndes v The Queen (1999) 195 CLR 665 at [15] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
22 As Burt CJ said nearly 20 years ago in R v Peterson [1984] WAR 329 at 330:
"An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing Judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error."
23 See also Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 per Murray J at 6 – 7 and the review of the authorities by Anderson J in Woods v The Queen (1994) 14 WAR 341 at 352 – 359. Where there are repeated sexual offences over a substantial period, as in this case, the offender's culpability is significantly increased: Woods v The Queen (supra) at 346 per Anderson J; Boudville v The Queen [2001] WASCA 133 at [30] per Malcolm CJ; and Dauphin v The Queen [2002] WASCA 104 at [17] per Steytler J.
24 The principles applicable to sentencing in a case of this kind were recently summarised in R v Chilvers [2003] WASCA 87 at [25] – [26] by McKechnie J, with whom Anderson and Parker JJ agreed, as follows:
"There are many cases on sentencing offenders guilty of child sexual abuse within a family or in a closed community. Most cases are applications of settled principle. The principles relevant to this appeal are:
• There is no tariff for sexual offences.
• Sexual offences are very serious.
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- • They involve a breach of trust.
• Crimes against more than one child aggravate the offending conduct especially if one child becomes aware that a sibling has also been a victim.
• Offences repeated over a period are aggravating circumstances.
• The dominant sentencing considerations are punishment and general deterrence.
• Disparity in age can be an aggravating feature.
• Vulnerable victims should be properly protected by the imposition of deterrent sentences.
• Mitigating factors do not have as much weight as they might do in other cases.
• Exceptional circumstances must be shown to justify a sentence other than immediate imprisonment
• However, maintaining the family unit and the prospects of success in adopting a welfare approach are powerful mitigating factors.
• The desire of a family for a father not to be imprisoned is significant but by no means conclusive.
• Forgiveness by a victim is significant but not conclusive.
• Ordinarily, sexual offences of this type would merit immediate imprisonment for a significant period but this is not an invariable rule.
• The decision to suspend a sentence depends on consideration of all factors relevant to the offender whether aggravating or mitigating, including the objective features of the offence.
These principles are distilled from a series of cases: Podirsky v The Queen (1990) 3 WAR 128; Woods v The Queen (1994) 14 WAR 341; R v GP (1997) 18 WAR 196; Trescuri v The Queen [1999] WASCA 172; De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996; Dauphin v The Queen [2002] WASCA 104; Pihema v The Queen, unreported, CCA SCt of WA; Library No 940137, 17 March 1994; Hodder v The Queen(1995) 15 WAR 264; R v N [1998] 2 NZLR 272; R v Hough [2002] WASCA 42; Keding v The Queen, unreported; CCA SCt of WA; Library No 940522; 22 September 1994; R v
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- Boyd [1984] WAR 236; R v Johnson, unreported; CCA SCt of WA; Library No 920112; 5 March 1992; R v EPR [2001] WASCA 214; R v Wilson, unreported CCA SCt of WA; Library No 950258; 26 May 1995;Dinsdale v The Queen (2000) 202 CLR 321."
25 In my opinion, the approach taken by the learned Commissioner by fixing on the appropriate individual sentences for each offence was correct. In essence, the question was raised by the appeal is whether the end result was a total sentence which infringed the totality principle because it constituted a sentence that was crushing and out of proportion to the totality of the criminal conduct involved.
26 In Bell v The Queen [2001] WASCA 40, Anderson J (with whom Kennedy and Stein AJ agreed), in response to a submission that because the convictions were so old, the aggregate sentence which was imposed in that case was manifestly excessive, said at [4] – [7]
"On behalf of the applicant, it was submitted that because he had no other convictions and because the offences were so old the aggregate sentence of 5 years was manifestly excessive.
Generally speaking, an important objective in custodial sentences is personal deterrence and rehabilitation. Where many years have elapsed since the last offence, there is obviously no need to emphasise in the sentence the element of personal deterrence and, as well, the Court may be able to conclude that rehabilitation has already taken place. This may justify a lesser sentence than would otherwise be appropriate: Duncan v The Queen (1983) 47 ALR 746 at 749; Bell v The Queen (1981) 5 A Crim R 347; R v Law (1995) 84 A Crim R 142; R v Werner, unreported; CCA SCt of Qld; 9 October 1998; Wagenaar v The Queen [2000] WASCA 325 at [64] to [72].
Secondly, where the offences are 'stale', considerations of simple fairness and mercy may require leniency to be extended to the offender: R v Todd[1982] 2 NSWLR 517 at 519 - 520 (cited with approval in Mill v The Queen (1988) 166 CLR 59 at 64); R v Miceli [1998] 4 VR 588.
There are, however, other cases in England and Australia which say that lapse of time between the commission of the offence and its detection and punishment in cases of offences involving sexual abuse within the family is not, of itself, a significant
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- mitigating factor: R v Tiso (1990) 12 Cr App Rep (S) 122; R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993; Sell v The Queen (1995) 15 WAR 240."
27 Anderson J went on to say at par [12]:
"The point is that in cases of intra-familial sexual abuse, the offending often goes undetected for a long time, the offender will often be a person who has led an otherwise blameless life, will often be of no danger to anyone except children in the family and will usually be most unlikely to reoffend once the offending in question is disclosed, or the opportunity to commit offences against the particular complainant has gone. Because these are common features in cases of this kind, they are not of much mitigatory weight. Other sentencing considerations overwhelm them. Sentencing objectives in this kind of case focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a position of trust and authority over them in the family setting and who are in a position to conceal their offending."
28 In my opinion, this was a case of a similar kind. For this reason, the learned Commissioner was entirely correct in saying that the circumstances and the nature of the offences over the period of about two years overwhelmed matters personal to the applicant and matters favourable to him.
29 Counsel for the applicant referred to R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 in which a total sentence of imprisonment for 12 years was imposed in respect of a case where there was a long history of intimidation and forced non-consensual sexual intercourse by a father upon his stepdaughters resulting in two pregnancies and including acts of physical aggression and threats of violence. The offences had occurred many years prior to them coming to light and the offender had led a blameless life for many years with little, if any, risk of reoffending. The offender was convicted after trial. In my opinion, the decision in that case does not constitute a current guide to the approach to sentencing. In the interim period, while there is still no tariff for such offences, it is apparent that the trend in sentencing has been firming up having regard to a number of factors, including a greater understanding of the impact of such offences on victims. In any event, the offender in Petchell was aged 60 at the time of sentencing, which was itself a factor to be taken into account.
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30 Counsel for the applicant also relied on the decision of Squance v The Queen, unreported; CCA SCt of WA; Library No 8276; 31 May 1990. In that case, the offender was convicted of ten counts of indecent dealing with his eight-year-old daughter. In my opinion, no reliance can be placed upon that case which has been overtaken by subsequent authorities.
31 It was submitted on behalf of the applicant that, taking into account the early plea of guilty; the acceptance of responsibility when confronted by the mother of the child with the allegation approximately 10 years previously; the fact that the applicant voluntarily desisted from the conduct as a result of a direct request by the complainant; and the delay of 14 years from the date of offending to the date the matter was dealt with by the Court, during which he had been gainfully employed and had been involved in rehabilitation programmes, insufficient weight had been given to these mitigating factors.
32 Reliance was also placed upon the report from SAFE, which was accepted by the Commissioner as evidencing that the applicant had a low risk of reoffending and provided some explanation of the background to the offending. It was a result of a combination of alcohol and cannabis abuse in the context of the disintegration of his marriage, as well as the death of his father, and against a background of "suggestions" that he had himself suffered sexual abuse in the past.
33 It was acknowledged by counsel for the applicant that the reasoning of the learned Commissioner could not be faulted because he referred to every aggravating factor and every mitigating circumstance which had been put forward on either side. The primary contention made on behalf of the applicant was that, in the end, the mitigating circumstances did not translate into a sentence more in line with the authorities such as Morley v The Queen [2001] WASCA 49 and Trescuri v The Queen [1999] WASCA 172.
34 It was contended that the total sentence of 12 years was manifestly excessive because it reflected what should have been a "starting point" before taking account of mitigating factors, rather than the sentence imposed after taking into account all relevant mitigating factors and other relevant circumstances.
35 In Morley v The Queen (supra), there was a series of sexual assaults over a period of 13 years against two stepdaughters and a daughter under 16 years of age. There was significant evidence of remorse. In that case,
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- a total sentence of 17 years was reduced on appeal to 13 years. The Court was concerned with the totality of the sentences for a very prolonged period of abuse of three young girls. Having regard to the structuring of the sentences that was undertaken by the learned Judge to bring down a cumulative total sentence from 54 years to an aggregate of 17 years, it was regarded as futile to examine each of the nominal sentences making up the 54 years: see per Kennedy, Anderson JJ and Stein AJ at [32]. At [33] their Honours held that, as difficult as it may be to identify a pattern of sentencing for this type of offence, the aggregate sentence imposed in that case was "far above the range of sentences indicated by comparable cases as to require the intervention of this Court". At [36] and [37], their Honours indicated that the conduct in Podirsky v The Queen (1990) 3 WAR 128 and Petchell (supra), were both significantly worse than Morley (supra) in terms of their objective criminality and consequences.
36 In cases of this kind, it has been recognised that the dominant sentencing considerations are general and personal deterrence and the protection of vulnerable young children. As a consequence, mitigatory factors are of much diminished weight: cf Woods v The Queen (supra) at 346 per Anderson J, with whom Malcolm CJ and Seaman J agreed; and R v Hough [2002] WASCA 42 at [74] per Malcolm CJ. In recent years, it has been emphasised that offences of a sexual nature upon young children by an adult within the family environment involve an abuse of trust which makes such offences very serious: Woods v The Queen (supra) at 346 per Anderson J; Trescuri v The Queen (supra) at [21] per Anderson J; and Chinnery v The Queen [2000] WASCA 295 at [28] per Murray J. In such cases, much less weight is given to mitigating factors: R v GP (1997) 18 WAR 196 at 207 per Malcolm CJ.
37 In the present case, the applicant did not admit the offending until the complainant eventually revealed to her mother what had happened, and they confronted the applicant toward the end of 1990. The applicant did not seek counselling until the complainant contacted the police in November 2002. Cases involving sexual assaults on young children within the family have attracted heavy sentences of 8 years or more in total. Such cases are often, but not always, cases where more than one child has been victimised; or where there has been multiple offending over an extended period and the offending has included sexual penetration; or where some degree of violence, cruelty, aggression or threats have been employed: Woods v The Queen (supra) at 354 per Anderson J. After reviewing a number of cases of sexual assaults on young children which the Court had imposed sentences of 8 years or more, Anderson J said at 357:
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- "There are many other cases in which sentences of between 8 and 12 years have been imposed."
38 In a number of cases, longer sentences have been imposed. A recent example is Broome v The Queen [1999] WASCA 202, in which the applicant was convicted of four counts of rape and 17 counts of indecent dealing on his daughter over a period of about four years commencing when the complainant was seven years old. The counts of indecent dealing encompassed a range of conduct, all of it serious, involving such acts as the rubbing of the applicant's penis against the complainant's vagina and digital vaginal penetration. The first count of rape occurred in 1976 when the complainant was either seven or eight years old. The second occurred when she was 10, the third when she was 11 and the fourth when she was either 11 or 12. Some of these acts were accompanied by other acts of physical violence. Others were accompanied by threats. The complainant was told that if she told anyone what had been done to her, she would be taken away from her mother and her brother and she would never see them again. She was threatened with violence. She was told that she and her brother would be sorry if she told her mother what had happened to her. The applicant was not at all deterred by the visible, sometimes hysterical, distress of his daughter.
39 Steytler J (with whom Ipp and Anderson JJ agreed) said that taking into account the violence and threats of violence which accompanied the commission of the offences, the period of time over which the offending continued meant that as Steytler J put it at [17]:
"When regard is had to this and similar conduct, the period of time over which the offending continued and threats of the kind to which I have earlier referred there is, in my opinion, no sufficient basis for interfering with the overall disposition arrived at by the learned sentencing Judge. As was said by Anderson J (with whom Malcolm CJ and Seaman J were in agreement) in Woods v R (1994) 14 WAR 341 at 354, cases in which there has been multiple offending over an extended period of time involving acts of sexual penetration and in which violence, cruelty, aggression or threats have been employed will generally attract very heavy sentences. Here the offences were made still worse by the impact on the complainant of the fact that they were committed by her own father."
40 In my opinion, when the facts and circumstances of the present case are properly considered and evaluated, it cannot be said that a total
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- sentence of 12 years for this particular chapter of criminal behaviour was manifestly excessive. For those reasons, I would refuse the application for leave to appeal.
41 SCOTT J: In this matter I have had the opportunity of reading in draft the reasons to be published by the learned Chief Justice.
42 I agree with his Honour's reasons and his conclusion that leave to appeal should be refused.
43 I note the careful analysis of many cases in this area in the judgment of Anderson J in Woods v The Queen (supra) and the sentences imposed in comparative cases. The issue in this case is whether the sentence is so far outside the accepted range of sentences for conduct of this type that the appeal court should intervene. I agree that after careful analysis it cannot be said that the sentence imposed by the learned Commissioner in this case is outside the appropriate discretionary sentencing range: Lowndes v The Queen (supra) per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ at 671 - 672.
44 MCKECHNIE J: I agree with the reasons and conclusions of the Hon the Chief Justice.
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