CAND v The State of Western Australia
[2018] WASCA 101
•26 JUNE 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CAND -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 101
CORAM: MARTIN CJ
BEECH JA
HALL J
HEARD: 1 FEBRUARY 2018
DELIVERED : 26 JUNE 2018
FILE NO/S: CACR 51 of 2017
CACR 52 of 2017
BETWEEN: CAND
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: McCANN DCJ
File Number : IND 1709 of 2015
Catchwords:
Criminal law - Appeal against conviction - Indecent dealing with and sexual penetration of de facto child - Whether trial judge gave adequate Longman direction - Direction of law or comment - Whether direction adequately addressed effect of delay upon appellant's opportunity to test evidence given by complainant
Criminal law - Appeal against sentence - Whether total effective sentence manifestly excessive - Whether sentence imposed in relation to one count of indecent dealing manifestly excessive
Legislation:
Criminal Code Compilation Act 1913 (WA), s 329
Result:
Appeals dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Ms C Barbagallo SC |
Solicitors:
| Appellant | : | Morris Law |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
EXF v The State of Western Australia [2015] WASCA 118
FJL v The State of Western Australia [2010] WASCA 8
GO v The State of Western Australia [2016] WASCA 132
JDF v The State of Western Australia [2016] WASCA 221
JJR v The State of Western Australia [2018] WASCA 51
KC v The State of Western Australia [2008] WASCA 216
KMB v The State of Western Australia [2010] WASCA 212
LJH v The State of Western Australia [2016] WASCA 155
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MAS v The State of Western Australia [2012] WASCA 36
MB v The State of Western Australia [2016] WASCA 160
Salkilld v The State of Western Australia [2017] WASCA 168
SPB v The State of Western Australia [2012] WASCA 136
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v PJW [2015] WASCA 113
JUDGMENT OF THE COURT:
Summary
CAND (the appellant) was convicted on three counts of indecently dealing with a de facto child under the age of 16 years, and two counts of sexual penetration of a de facto child under the age of 16 years, following trial by judge and jury in the District Court of Western Australia. The appellant was also acquitted on one count of indecent dealing with a de facto child under the age of 16 years. The complainant in each offence was the daughter of the appellant's de facto wife. The offences of which the appellant was convicted were alleged to have been committed over a period of approximately 10 years, between February 1996 and February 2006.
The appellant applies for leave to appeal against his conviction and against the sentences imposed following conviction. In the appeal against conviction, the appellant asserts that the direction given by the trial judge to the jury in relation to the prejudicial effect of lengthy delay upon the appellant's capacity to present his defence to the charges and impugn the prosecution case was inadequate. In the appeal against sentence, the appellant asserts that the total effective sentence of 9 years and 6 months imprisonment infringed the first limb of the totality principle in that it was manifestly excessive. He also asserts that the term of 3 years imprisonment imposed in respect of one count of indecent dealing (count 1) was manifestly excessive.
The applications for leave to appeal were brought out of time. As a result, the appellant applies for extensions of time within which to commence the appeals against conviction and sentence. The applications for extensions of time and for leave to appeal have been referred to this court for consideration in conjunction with the substantive appeals.
For the reasons which follow, the applications for extensions of time and for leave to appeal should be granted. However, both the appeal against conviction and the appeal against sentence should be dismissed.
The prosecution case
The appellant and the complainant's mother had been in a de facto relationship for 23 years at the time of trial. The complainant was 2 years old at the beginning of the relationship and was raised as the appellant's daughter. The complainant regarded the appellant as her biological father.
The prosecution case relied principally, but not exclusively, upon the evidence of the complainant. The prosecution alleged that the appellant sexually interfered with the complainant over a period of approximately 10 years, commencing in 1996 or 1997 when the complainant was 5 or 6 years of age, and ending in 2006 when the complainant was around 15 years of age. On the prosecution case, the appellant interfered with the complainant regularly and continuously over this period, although with reducing frequency in the latter part of the period. The specific counts that were brought against the appellant were said to be representative of a continuing course of conduct.
At the time the sexual interference was alleged to have commenced, the appellant, the complainant's mother, the complainant and her younger brother were living in a relatively small flat. As the complainant's mother regularly worked during the day, the complainant was often left in the care of the appellant.
Count 1
Count 1 involved an allegation that on an unknown date between February 1996 and February 1998, the appellant indecently dealt with the complainant by removing her clothes and his pants, positioning his erect penis on her vagina, and moving it in the fashion of sexual intercourse.
Count 2
Count 2 involved an allegation that on a later occasion than count 1, but also unknown date between February 1996 and February 1998, the appellant placed his penis in the complainant's mouth and instructed her to perform oral sex by moving her head back and forth.
Count 3
Count 3 involved an allegation that on the same occasion as the events the subject of count 2, the appellant simulated sexual intercourse with the complainant in the same manner as alleged in respect of count 1, although on this occasion he ejaculated onto the stomach of the complainant. He then used a wet flannel to remove the ejaculate from the complainant's stomach. The prosecution also alleged that this sequence of events occurred frequently throughout the relevant period.
Count 4
Count 4 involved an allegation that on an unknown date between January 1997 and December 1999, the appellant removed the complainant's clothes and performed cunnilingus on her while she lay on the bed. The appellant is alleged to have held the complainant's legs firmly apart to prevent her from moving. The prosecution also alleged that events of this kind occurred frequently throughout the period in question.
Count 5
Count 5 involved another allegation of indecent dealing with the complainant. As the appellant was acquitted on this count, it is unnecessary to set out the allegations which were not found to be proven.
Count 6
On the prosecution case, the frequency of the occurrence of events of the kind asserted in counts 1 to 4 reduced around the time the complainant reached the age of 8. From then on, the prosecution alleged that the appellant regularly entered the complainant's bedroom at night, where he would lie down beside the complainant, put his hand down her pants and touch her vagina. On the prosecution case, indecent dealing of this kind took place until an occasion between 2004 and 2006 when the appellant felt pubic hair around the complainant's vagina for the first time. This occasion of indecent dealing was the subject of count 6.
Uncharged acts
In 2005, when the complainant was around 14 years of age, the complainant's mother gave birth to twins and the family moved to larger accommodation in a suburban house. From about this time until the complainant was around 17 years of age, the complainant gave evidence to the effect that she would often see a figure in the bathroom window while she was showering. In a recorded interview with police, the appellant admitted to watching the complainant shower. No charges were brought in respect of that admission.
Alleged admissions
The complainant did not disclose the occurrence of the alleged offences to anybody until 2013, when she corresponded with the appellant by text message, blaming him for her depression. The appellant replied in terms to the effect that he was sorry, and that the complainant deserved to be happy. The complainant first reported the appellant's alleged conduct to police in December 2014. In June 2015, the police recorded a telephone call between the appellant and the complainant in which the appellant apologised to the complainant. The prosecution relied upon the text messages and telephone call as implied admissions by the appellant to the sexual interference alleged by the complainant.
The defence case
The defence denied that any of the charged acts had taken place, although it was conceded that the appellant had watched the complainant showering when she was in her mid-teens. According to the defence case, the apologies conveyed by the appellant, by text and telephone, related to that conduct, and not to the acts with which the appellant was charged. The defence asserted that the complainant was lying with respect to the alleged sexual interference. The appellant did not give evidence but led evidence from two witnesses, one of whom was the complainant's mother.
The trial judge's directions to the jury
The trial judge commenced his directions to the jury in conventional terms by advising the jury of their respective functions - namely, that he was the sole judge of the law, and the jury were bound to follow his directions with respect to the law, whereas the jury were the sole judges of the facts. In that context, the trial judge observed:[1]
Anything I say which is about the evidence is comment unless I say otherwise, and you're not bound by it.
[1] ts 299.
The trial judge provided the jury with an explanation of the law relating to each count on the indictment and then summarised for the jury the evidence which had been led with respect to each count, and the submissions put to the court by counsel for the prosecution and counsel for the defence.
In the context of summarising the submissions presented by counsel for the defence, the trial judge drew the jury's attention to the submission by counsel for the defence to the effect that the complainant's delay in disclosing the alleged abuse was indicative of the fact that the abuse had not occurred.[2] The trial judge directed the jury to the effect that the lengthy delay between the occurrence of the alleged events and the time at which complaint was made did not necessarily mean that the complainant was lying about what had occurred. He directed the jury that it was for them to determine the significance of this delay in relation to the credibility of the complainant, taking into account the possible reasons which she may have had for not complaining at the time the events occurred.[3]
[2] ts 337 - 338.
[3] ts 338.
The trial judge then directed the jury in relation to the forensic consequences of the substantial delay between the occurrence of the alleged offences and the investigation and subsequent charging of the appellant. As this portion of the trial judge's directions is the subject of the appeal against conviction, it is necessary to set out the portion in full:[4]
[4] ts 338 - 341.
I'm now going to give you a direction of law based on the experience of the courts which may not be your experience about the forensic difficulties in a case of this kind brought about by the lengthy gap in time between the events we're concerned with and the investigation and the matter coming to light. You have to be satisfied about [the complainant's] evidence. She's talking about things that occurred when she was a little girl or in very early adolescence.
Because of the nature of the case, it's her evidence that you have to accept if you're going to convict. Because of the passage of time, because these things occurred when she was a little girl - sorry, are alleged to have occurred when she was a little girl, and the seriousness of the allegations, you must scrutinise her evidence with special care. You should take carefully into account that the earliest of these events is alleged to have happened up to 20 years ago and the latest about 12 years ago.
[The complainant] was a little girl. Human memory can be fallible and it can become more fallible with the passage of time and this is particularly so in events about childhood. It's a matter of common experience, isn't it, but I'm giving you the experience of the court that this is why we say to juries assess her evidence with special care because it's a serious matter.
If someone asked you what colour shorts you were wearing at Christmas when you were six, you may or may not remember. It may or may not be important. But if it is important and you are firm about it, then you have to ask yourself the question. All right, okay, I've had a lot of years why would you remember that? Is that a reliable memory all these years down the track? So what I'm really saying to you is that time can alter memory, time can alter childhood memories and I'm giving you this direction to assess [the complainant's] evidence with special care.
I would also comment, members of the jury, that there can be significant forensic disadvantages to the accused person. An accused person doesn't have to prove anything but if an accused person chooses to speak to the police or give evidence, for that matter, they would like to furnish their evidence with as many particulars as possible. The opportunity to furnish one's version with true particulars, believable, credible particulars diminishes with the passage of time. Do you remember what time you got home from work on 1 September 2002 if you didn't do anything wrong that day?
Do you remember what you did on 1 September 2002 if you did something terrible that day? Well, you might. You may not remember the date but you'd remember the event. The problem from the point of view of an accused person who denies anything is how does any one day stand out from all the others? And it's easier to address the allegations, to furnish the bare denial with something more if the allegations are still fresh and it's possible to go into your computer and your diary and your payslips and Medicare rebate claims and work out what you were doing.
So the defence has a forensic disadvantage because of delay. No one's being criticised for this, it's not a black mark against [the complainant] or the prosecution or anyone else but as I've said you need to be careful in assessing [the complainant's] credibility about things that weren't put to her in cross-examination, you need to also be aware of the disadvantage that the defence is placed under in a case of this kind.
The opportunity to get forensic evidence is lost, although quite frankly, members of the jury, forensic evidence usually has very little use in cases of this kind. Unless the complainant goes straight to the police forensics can't do much - the sheets have gone in the wash or the undies have been washed or whatever. But other things can be investigated. The door can be looked at, the door handle tested, the clothes people wore and had can be checked. Might be some photos of someone in black jeans or not in black jeans, all this sort of thing. These are disadvantages to the defence.
Now, I've told you and directed you that you must assess [the complainant's] evidence with special care because of the delay, not because I think there's something suss about it because I haven't got any view. I'm just saying experience of the courts is where there's delay, assess the complainant's evidence with special care for the reasons I've tried to explain.
You can act on her evidence and convict on any charge you are considering having scrutinised her evidence with special care you believe it beyond reasonable doubt. If you're satisfied of the truth of her evidence beyond reasonable doubt you'll convict but I'm suggesting and directing you to use special care before you do that. The requirement to use special care doesn't make it any harder to believe her.
I don't know whether it was hard to believe her or not, that's your job, not mine. But it is a warning to juries that things that we all, I think, get about the passage of time have, according to experience of lawyers, the potential to blow up badly in a court of law so you need to be careful. It's a serious matter. We're not talking about who had the first CD disc player in the family, are we? What you got for Christmas 15 years ago. We're talking about whether [the appellant] used to simulate sexual intercourse and ejaculate on [the complainant's] stomach all those years ago and do other things to her.
The appeal against conviction
The only ground in the appeal against conviction alleges that the direction given by the trial judge with respect to the effect of lengthy delay was not in accordance with the principles enunciated in Longman v The Queen.[5] The particulars to the ground of appeal assert that the direction was inadequate in two respects. The particulars assert that:
1.1His Honour's direction was cast as and/or had the character of a comment;
1.2His Honour failed to direct the jury on the lost opportunity the defence had to challenge the complainant's credibility based on the delay.
[5] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 (Longman).
It has been necessary for this court to regularly address the obligations imposed upon trial judges by the decisions of the High Court in Longman and Crampton v The Queen.[6] It is unnecessary to undertake yet another review of those principles.
[6] Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 (Crampton).
For the purposes of this case, it is sufficient to observe that although it is well established that a Longman direction or warning 'has not been reduced to an immutable formula or a ritual incantation, divorced from the facts and circumstances of the particular case',[7] the direction must:
•be given as a direction which the jury is bound to follow - rather than as a mere comment;[8] and
•draw the jury's attention to the effect of delay on both the capacity to test the complainant's evidence and the opportunity to adequately marshal a positive defence.[9]
[7] SPB v The State of Western Australia [2012] WASCA 136 [53] (Buss JA); JJR v The State of Western Australia [2018] WASCA 51 [40] (Martin CJ).
[8] Crampton [142] (Hayne J); FJL v The State of Western Australia [2010] WASCA 8 [24] - [25] (Wheeler JA, Pullin JA agreeing); MAS v The State of Western Australia [2012] WASCA 36 [18] - [20] (Martin CJ, Pullin & Mazza JJA agreeing).
[9] Crampton [45], (Gaudron, Gummow & Callinan JJ) [126] - [129], (Kirby J); MB v The State of Western Australia [2016] WASCA 160 [50] (Martin CJ); SPB v The State of Western Australia [2012] WASCA 136 [52] (Buss JA).
So, the legal principles which underpin the appeal against conviction must be accepted. The appeal turns on the question of whether the direction given contravened those principles in the respects alleged.
Direction of law or comment?
The appellant's argument to the effect that the direction given by the trial judge to the jury was not given as a direction of law but as a mere comment seizes upon the use of the word 'comment' in the fifth paragraph of the direction which we have set out above. The use of that term by the trial judge was regrettable, given that he commenced his directions to the jury by distinguishing between directions of law on the one hand, and mere comment with respect to the evidence on the other. However, the question which must be resolved is whether the use of that word, on one occasion in the course of the direction, had the consequence that the jury would not understand the direction being given to be a direction of law.
In evaluating that question it is significant that the trial judge made it clear, at the commencement of his direction on the forensic effect of delay, that the direction being given was a direction of law. It is also significant that the direction was cast in emphatic terms, identifying the course which the jury was obliged to follow. This is in contrast to the terminology used by the trial judge in his review of the evidence, where he indicated quite clearly to the jury that their assessment of the evidence, and the findings of fact which they made, were entirely matters for them.
The jury were directed that they 'must' scrutinise the complainant's evidence with special care.[10] The jury were expressly told that the obligation to assess the complainant's evidence with special care was given as a 'direction'.[11] The jury were told that the defence has a forensic disadvantage - not that there might be a forensic disadvantage.[12] Later in the course of the general direction on the topic of delay, the trial judge told the jury twice that they were being 'directed' in relation to that issue.[13] In this context it should be noted that in the sentence immediately preceding the unfortunate reference to the word 'comment', the trial judge described the instruction he was giving to the jury as a 'direction'. Other forms of mandatory language are used at various points in the direction relating to delay, including statements to the effect that the jury 'should take carefully into account' the adverse consequences of delay, and 'need[ed] to be careful' or 'need[ed] to be aware of' the forensic disadvantage to the accused as a consequence of the long delay.
[10] See the second paragraph of the direction set out at [20] above.
[11] Fourth paragraph of the direction.
[12] Seventh paragraph of the direction.
[13] Ninth and tenth paragraphs of the direction.
When the direction given to the jury with respect to the consequences of long delay is considered as a whole, the jury can have been left in no doubt that they were being given a direction as to the law, which they were obliged to follow, and not mere commentary upon the evidence. The single use of the word 'comment' would not, when viewed in the context of the direction on this topic as a whole, have caused the jury to entertain any misapprehension as to the nature of the direction they were being given. This conclusion is reinforced by the consistent character of the judge's terminology throughout the summing up. The distinction made at the outset between binding directions of law and comments on the evidence was consistently marked throughout the summing up. See, for example, ts 306, 313, 320, 321, 326, 331, 336, 343 and 346.
This aspect of the appeal against conviction must be rejected.
The lost opportunity to challenge the complainant's evidence
On behalf of the appellant it is contended that although the trial judge directed the jury with respect to the effect of delay upon the appellant's opportunity to marshal a defence, no or no adequate direction was given with respect to the effect of delay upon the appellant's opportunity to test the evidence given by the complainant.
It must be accepted that the trial judge did not follow the conventional course taken in directions of this kind, and refer explicitly to the forensic disadvantage suffered by the accused both in relation to marshalling positive evidence in his defence and in relation to testing the credibility of the evidence given by the complainant. However, the question which must be addressed is whether the latter proposition was conveyed to the jury implicitly through the direction that was given.
It is significant that the main thrust of the direction given by the trial judge on this topic concerned the special care that the jury needed to take in assessing the credibility of the evidence given by the complainant, given that the events were alleged to have occurred when she was a little girl and many years ago. In that context, the trial judge referred specifically to the lost opportunity to get forensic evidence (which he observed may be of limited assistance), but also to the lost opportunity to investigate other things - observing:[14]
The door can be looked at, the door handle tested, the clothes people wore and had can be checked. Might be some photos of someone in black jeans or not in black jeans, all this sort of thing. These are disadvantages to the defence.
[14] ts 340.
The jury can only have understood the above to be references to matters that might have been used to test the credibility of the evidence given by the complainant, in a context in which the jury were repeatedly told that they were obliged to assess her evidence with special care.
For these reasons, although the language used by the trial judge was not as explicit as would have been optimal, it was sufficient to convey to the jury that the lengthy delay had occasioned forensic disadvantage not only because it impeded the capacity of the appellant to give an alternative account of his movements, but also because it impeded the capacity of the appellant to investigate matters which could be used to challenge the credibility of the evidence given by the complainant. Accordingly, the second aspect of the appeal against conviction should also be rejected.
Conclusion - appeal against conviction
As the appeal against conviction was clearly arguable, and an adequate explanation has been provided for the relatively short delay in commencing the appeal, the application for an extension of time and leave to appeal should both be granted. However, the substantive appeal against conviction should be dismissed.
The appeal against sentence
For the purposes of sentence, the judge made findings of fact which essentially correspond to the prosecution case which we have set out above. In particular, he found that the appellant sexually abused the complainant on a regular basis for around five or six years, and that the counts on which the appellant was convicted were representative of a continuing course of conduct.
The judge also made observations with respect to the appellant's character and antecedents. At the time of sentencing the appellant was 45 years of age. He was the child of a stable marriage. He left school after completing year nine and had since been employed in various blue collar jobs. Until recently, he had been employed as a truck driver.
The appellant had a history of substance abuse and depression.[15] He had experimented with ecstasy, cocaine and heroin and, during the worst period of his offending, had a significant addiction to methylamphetamine, using that substance daily on an intravenous basis. At the time of sentencing, the appellant was a regular user of cannabis but had ceased using methylamphetamine. The psychological evidence presented to the court established that the appellant had suffered from depression for approximately 10 years.
[15] ts 386.
The judge noted that the appellant had apologised to the complainant in the telephone call, but gave that apology little weight in light of the appellant's subsequent denial of the offences.[16] Having regard to the appellant's conduct, the judge did not consider the character references provided in support of the appellant to be of significant weight.[17]
[16] ts 386.
[17] ts 386.
The judge found that there was a risk of the appellant reoffending in a similar manner, although he did not describe the risk as significantly elevated.[18]
[18] ts 387.
The judge identified a number of specific aggravating factors. They included the fact that the complainant had the right to repose trust and confidence in the appellant who was, for all intents and purposes, her father. The sexual abuse was regular, occurred over a sustained period and commenced when the complainant was very young. The judge considered that the simulated sexual intercourse resulting in ejaculation and the forced fellatio were offences of a particularly serious nature.
The judge also noted from the victim impact statement provided by the complainant that the offences committed by the appellant had a significant adverse effect upon her self-esteem, confidence, psychological health and capacity for enjoyable intimacy.
The judge found that there were few mitigating factors.[19] He noted that the appellant was not entitled to any reduction in sentence because of a guilty plea, nor had he demonstrated any remorse for his actions or empathy for the complainant.
[19] ts 387.
The sentences imposed
The judge imposed the following sentences:
| Count | Offence | Maximum penalty | Term imposed |
| 1 | Indecent dealing with de facto child under 16 years: s 329(4) Criminal Code Compilation Act 1913 (WA) | 10 years | 3 years cumulative |
| 2 | Sexual penetration of de facto child under 16 years: s 329(2) Criminal Code | 20 years | 5 years concurrent |
| 3 | Indecent dealing with de facto child under 16 years: s 329(4) Criminal Code | 10 years | 4 years concurrent |
| 4 | Sexual penetration of de facto child under 16 years: s 329(2) Criminal Code | 20 years | 5 years cumulative |
| 6 | Indecent dealing with de facto child under 16 years: s 329(4) Criminal Code | 10 years | 18 months cumulative |
| Total effective sentence | 9 years 6 months | ||
The grounds of appeal against sentence
There are two grounds of appeal against sentence:
1. The learned sentencing Judge erred in imposing a total effective sentence that infringed the first limb of the principle of totality, having regard to the overall criminality involved in the various offences, when viewed in their entirety, and in all the circumstances of the case, including those referable to the appellant.
2. The sentence imposed for count 1 was manifestly excessive when regard is had to the appellant's antecedents, the objective criminality, the maximum sentence and sentences imposed in broadly comparable cases.
Both grounds of appeal involve allegations of implied error. The general principles applicable to such appeals are well established and have been conveniently summarised in the following terms:[20]
(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is outside the available sentencing range.
[20] Salkilld v The State of Western Australia [2017] WASCA 168 [48] (Buss P, Mazza & Beech JJA).
Ground 1 - totality
The first ground of the appeal against sentence asserts that the total effective sentence of 9 years and 6 months imprisonment infringes the first limb of the totality principle, in that it is manifestly excessive. In support of that contention, the appellant has referred in written argument to a number of cases decided by this court which are said to be comparable. The appellant relies upon those decisions for the assertion that the total effective sentence imposed in this case is so unreasonable or so unjust as to manifest error.
That process of argument must be viewed in light of the principles which we have set out above and, in particular, the principle that complete congruity between sentences imposed in similar cases is not to be expected, given the discretionary nature of the sentencing process. Further, because the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion.[21] For those reasons there will necessarily be limits upon the utility of the process of argument presented on behalf of the appellant.
[21] LJH v The State of Western Australia [2016] WASCA 155 [81] (Martin CJ); JJR v The State of Western Australia [169] (Mitchell JA).
Nevertheless, for the sake of completeness, we will deal briefly with each of the cases said to be comparable in the appellant's written submissions.
KC v The State of Western Australia
In KC v The State of Western Australia,[22] the offender was sentenced to a total effective sentence of 10 years and 8 months imprisonment after being convicted on pleas of guilty to 15 counts of sexually offending against his two stepchildren and his two step-grandchildren. Given the multiple complainants, the pleas of guilty, the slightly different circumstances of the offending behaviour, and the fact that the sentences were imposed 10 years ago, comparison with the present case is of little or no assistance.
[22] KC v The State of Western Australia [2008] WASCA 216.
KMB v The State of Western Australia
In KMB v The State of Western Australia,[23] the offender was convicted after trial on seven counts of sexual offending against his stepdaughter. He was sentenced to a term of 10 years and 6 months imprisonment with respect to one count on the indictment, and to a total effective term of 14 years and 6 months imprisonment. The culpable behaviour of that offender was, on any view, significantly worse than the behaviour of this appellant. The attempt to rely upon the sentence of 10 years and 6 months imposed in respect of one count against that offender as a basis for a contention that the total effective sentence imposed in this case is manifestly excessive is misconceived. The relevant comparators are the total effective sentences imposed in each of the two cases. The difference of 5 years between the two sentences is so substantial that the case provides little assistance as a comparator.
[23] KMB v The State of Western Australia [2010] WASCA 212.
The State of Western Australia v FJG
In The State of Western Australia v FJG,[24] the offender pleaded guilty to five offences and was convicted after trial of nine offences against his two natural daughters. Following a successful state appeal against sentence, he was sentenced to a total effective sentence of 10 years and 6 months imprisonment. Although the culpability of the offender in that case was, on the whole, greater than the culpability of this offender, he received a longer total effective sentence. As has been previously observed in cases of this kind, comparisons of sentences imposed by reference to some scale of relative depravity are invidious, and shed little light on the question of whether there has been an error of principle in the imposition of the relevant sentences.[25]
[24] The State of Western Australia v FJG [2012] WASCA 206.
[25] See, for example, JJR v The State of Western Australia [105]-[106], [115] (Martin CJ).
The State of Western Australia v PJW
In The State of Western Australia v PJW,[26] the offender was convicted after trial on nine counts of sexual offending against his stepdaughter. Following a successful state appeal against sentence, he was sentenced to a term of 9 years imprisonment. Although the offending behaviour was, in some respects, more culpable than the behaviour of this offender, involving penile penetration and ejaculation into the mouth of the complainant, the offences were committed over a much shorter period - namely, approximately 10 months. Any comparison of that case with this one must take account of the fact that the present offender sexually abused his de facto daughter over a period of around 10 years, and of the consequences of that sustained period of abuse for the complainant in this case. When that is taken into account, PJW does not suggest implied error in respect of the sentences imposed in this case.
[26] The State of Western Australia v PJW [2015] WASCA 113.
EXF v The State of Western Australia
In EXF v The State of Western Australia,[27] the offender pleaded guilty to 14 counts of dealing indecently with his three stepdaughters. The offender was sentenced to a total effective sentence of 11 years and 6 months imprisonment. The offending conduct in that case was more serious than the offending conduct in the present case in that three complainants were involved. However, in EXF, the offender pleaded guilty.
[27] EXF v The State of Western Australia [2015] WASCA 118.
GO v The State of Western Australia
In GO v The State of Western Australia,[28] two co-offenders were convicted after trial of a number of sexual offences against two of the children of one of the offenders. That offender was sentenced to a total effective term of 7 years imprisonment, whereas the other offender was sentenced to a total effective term of 10 years and 6 months imprisonment. The circumstances of the offending, of the offenders, and of the complainants was so different to the circumstances of the present case as to shed no light upon the propriety or otherwise of the sentences imposed in this case.
[28] GO v The State of Western Australia [2016] WASCA 132.
LJH v The State of Western Australia
In LJH v The State of Western Australia,[29] the offender pleaded guilty to 26 counts of sexual penetration of a de facto child, two counts of procuring a de facto child to engage in sexual behaviour, 13 counts of indecently recording a de facto child and two offences of possession of child exploitation material. A total effective sentence of 13 years imprisonment was reduced on appeal to 10 years imprisonment. Although the offending conduct in LJH was more serious than the conduct of the offender in this case, it took place over a much shorter period. The sentence of 10 years reflected a discount of 20% on account of the pleas of guilty.
[29] LJH v The State of Western Australia [2016] WASCA 155.
JDF v The State of Western Australia
In JDF v The State of Western Australia,[30] the offender was convicted after trial on five counts of sexually offending against a child between the ages of 12 and 14 years. His appeal against a total effective sentence of 8 years and 6 months imprisonment was dismissed. Although it is arguable that the offending behaviour in that case was more serious than in this case (as it involved penile penetration of the vagina accompanied by ejaculation on at least one occasion), the offending behaviour took place over a much shorter period and involved an older victim. When account is taken of those differences, it might be argued that the total effective sentence imposed upon this appellant was somewhat more severe than that imposed upon JDF. However, the differences are not so significant as to support the conclusion that error is to be derived from the magnitude of the total effective sentence imposed in this case. We reiterate that mathematical equivalence between comparable sentences is not to be expected, and that comparison with a sentence imposed in another single case will seldom, if ever, demonstrate an error of principle of a kind sufficient to justify appellate intervention.
[30] JDF v The State of Western Australia [2016] WASCA 221.
Summary - ground 1
None of the cases upon which reliance was placed in argument in support of ground 1 of the appeal against sentence establish, either individually or in combination, that the total effective sentence imposed in this case is so excessive as to manifest error. While some of those cases involved offending of a more serious nature, such as significantly more offences of sexual penetration, when account is taken of the particular features of this case, including the duration of the appellant's offending, the consequences of that offending for the complainant and the appellant's plea of not guilty, the total effective sentence of 9 years 6 months is broadly consistent with the sentences imposed in reasonably comparable cases.
In our opinion, the total effective sentence imposed on the appellant bears a proper relationship to the overall criminality involved in all of the appellant's offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to him personally and to all relevant sentencing factors. A breach of the first limb of the totality principle has not been demonstrated.
Ground 1 of the appeal against sentence must be dismissed.
Ground 2 - count 1
Ground 2 alleges that the sentence of 3 years imprisonment imposed in respect of count 1 on the indictment is so excessive as to manifest error.
This ground of appeal can be disposed of briefly, as it is without substance. The offence involved the simulation of sexual intercourse upon a girl of very young age (5 or 6 years) by a person she considered to be her father, and in whom she was entitled to repose trust and confidence. There were no mitigating factors of any significance. The maximum penalty for the offence was a term of 10 years imprisonment. A term of 3 years imprisonment was well within the range of the sound exercise of the sentencing discretion.
The appeal against sentence - conclusion
For the reasons we have given, the appeal against sentence lacked any real substance. Because an acceptable explanation has been proffered for the delay in commencement of the appeal, which was not substantial, we would grant an extension of time. However, we would refuse leave to appeal against sentence and dismiss the appeal.
Overall conclusion
For these reasons, extensions of time should be granted to permit the applications for leave to appeal against conviction and sentence. Leave to appeal against conviction should be granted, but leave to appeal against sentence should be refused. Both appeals should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
RESEARCH ASSOCIATE TO THE HONOURABLE CHIEF JUSTICE MARTIN26 JUNE 2018
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