Carter v The Queen
[2003] WASCA 159
•24 JULY 2003
CARTER -v- THE QUEEN [2003] WASCA 159
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 159 | |
| COURT OF CRIMINAL APPEAL | 24/07/2003 | ||
| Case No: | CCA:243/2003 | 5 JUNE 2003 | |
| Coram: | MURRAY J ANDERSON J WHEELER J | 5/06/03 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | JOHN SHANE CARTER THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Aggravated sexual offences against two children under the age of 13 years Totality principle Multiple offences More than one complainant Turns on own facts |
Legislation: | Nil |
Case References: | B v R [2002] WASCA 236 Bishop v The Queen [2003] WASCA 79 Boudville v The Queen [2001] WASCA 133 Jarvis v R (1998) 20 WAR 201 Shepherdson v The Queen, unreported; CCA SCt of WA; Library No 920179; 27 March 1992 Fullgrabe v The Queen [2002] WASCA 58 Morley v The Queen [2001] WASCA 49 R v Podirsky (1989) 43 A Crim R 404 R v Tiso (1990) 12 Cr App R 122 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : CARTER -v- THE QUEEN [2003] WASCA 159 CORAM : MURRAY J
- ANDERSON J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Aggravated sexual offences against two children under the age of 13 years - Totality principle - Multiple offences - More than one complainant - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : Mr D J McKenzie
Respondent : Mr S E Stone
Solicitors:
Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
B v R [2002] WASCA 236
Bishop v The Queen [2003] WASCA 79
Boudville v The Queen [2001] WASCA 133
Jarvis v R (1998) 20 WAR 201
Shepherdson v The Queen, unreported; CCA SCt of WA; Library No 920179; 27 March 1992
Case(s) also cited:
Fullgrabe v The Queen [2002] WASCA 58
Morley v The Queen [2001] WASCA 49
R v Podirsky (1989) 43 A Crim R 404
R v Tiso (1990) 12 Cr App R 122
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1 MURRAY J: I respectfully agree with the reasons of Wheeler J. There is nothing that I could usefully add.
2 ANDERSON J: The judgment of Wheeler J fully expresses my reasons for joining in the decision of the Court on 5 June 2003 to dismiss this application for leave to appeal against sentence.
3 WHEELER J: This was an application for leave to appeal against sentence. On 5 June 2003 the Court dismissed the application. These are my reasons for joining in that decision.
4 On 7 November 2002, the applicant pleaded guilty to one count of indecent dealing with a child under 13 years by showing offensive material, nine counts of indecently dealing with a child under 13 years and 14 counts of sexually penetrating a child under 13 years. While there was some digital penetration, the majority of the sexual penetration counts involved full sexual intercourse and, naturally, attracted the heaviest sentences.
5 There were two complainants. The first complainant was aged between 7 and 9 at the time of the offences, and the second complainant was aged 10 at the relevant times. The applicant was aged between 33 and 35 years at the relevant times. He was sentenced, after conviction on his own plea of guilty, to an effective total of 16 years' imprisonment, backdated from the time of his being taken into custody, with eligibility for parole. In relation to each complainant, there was a sentence of 8 years' imprisonment for one of the counts of sexual penetration, with those sentences being cumulative on each other. There was otherwise, in relation to each complainant, a series of concurrent sentences imposed ranging from 8 years' imprisonment for the counts of sexual penetration down to 2 years' imprisonment for indecent dealing by showing offensive material. The single ground of appeal is that in all the circumstances the sentence imposed was manifestly excessive.
6 The offences were plainly very serious. There were two children involved. Both were very young. In each case, the applicant was in the position of stepfather to the complainants. In one case, he was the father of the complainant's two half-brothers and living with the complainant's mother, while in the case of the second complainant, he was at the relevant time living in a de facto relationship with her mother. In the case of the second complainant, he initially attempted to persuade her to engage in sexual activity with him by explaining to her that he had done
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- so with the first complainant and that the first complainant had participated enthusiastically. There was a persistent course of conduct over a period of two and a half years in total, and on a number of occasions there was a clear indication of premeditation and planning, with the applicant taking steps to ensure that he was alone with each of the complainants.
7 It must have been plain to the applicant that neither of his victims wished to engage in sexual activity with him. Both resisted verbally, and each at one time or another suggested that she would tell her mother what was happening. In relation to the first of the complainants, the stress which the applicant's conduct caused her was such that she began to lose her hair. Medical practitioners to whom she was taken suggested that the hair loss was caused by stress, but of course were unable to suggest what might be causing that stress. Each victim reported feeling sick, feeling worried, being unable to concentrate at school, and not knowing what was the right thing to do in relation to the applicant's conduct. It is inconceivable that the applicant was unaware, at least generally, of the effect which his behaviour was having upon each complainant.
8 Although there was objectively no risk of pregnancy, there was a risk of transmission of sexually transmitted disease, and it does appear that one of the complainants contracted thrush. One of the complainants, understanding only that sexual intercourse could cause pregnancy, was seriously concerned for a period of time about the possibility that she might be pregnant. The applicant's conduct came to light only when the second of the complainants told her mother what had been happening, and that complainant's mother contacted the mother of the first complainant, who then questioned her own daughter.
9 The applicant appears to have been unwilling to accept responsibility for his behaviour. Initially, confronted by the mother of the second complainant, he left the State and lived in another jurisdiction under a name slightly different from his own, returning only when extradited. When first interviewed by police he denied the offences. Despite his plea of guilty, he appears to have minimised his own role in the offences, telling the psychologist who interviewed him, in effect, that each of the complainants displayed unnatural curiosity and interest in sexual matters. In addition, in relation to at least one of the complainants, he seemed to suggest to the psychologist that his offences against her were "caused" by his having arguments with her mother, and further that they had occurred during a "heavy hangover period".
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10 Notwithstanding the serious nature of the offending, it was submitted on behalf of the applicant that, since the offences did not involve such grossly aggravating circumstances as physical cruelty or pregnancy, they did not fall into the "worst category" of offences. Reference was made particularly to the case of B v R [2002] WASCA 236. That case is a wholly inappropriate comparator. It involved four extremely young children and circumstances which caused Miller J (with whom Murray and Templeman JJ agreed) to say that "I know of no case involving such concentrated and depraved abuse by a father of his infant children". However, in that case the "starting point" in respect of each complainant was considered by the learned sentencing Judge to be a term of 20 years, discounted to 15 years only for the plea of guilty. The application of the "totality" principle resulted in an effective term of 20 years' imprisonment, and it is to be noted that this Court in that case said that the sentence imposed was "within" the appropriate range. There was no suggestion that the sentence was to be considered a severe one, having regard to the totality of the offending.
11 Other cases were referred to by counsel for the applicant and by the Crown. I do not think it is necessary once again to review the pattern of sentencing which is considered to be appropriate in a variety of types of cases involving sexual abuse of young children. That exercise has been carried out on a number of occasions. It is, I think, necessary to make reference only to two relatively recent decisions of this Court, in which the position is appropriately summarised. In Boudville v The Queen [2001] WASCA 133, Malcolm CJ with whom Wallwork and Murray JJ agreed, said (at [32]):
"Where there are numerous offences of aggravated sexual assault by penile penetration involving a girl under the age of 16 years, total sentences within the range of 9 to 11 years are commonly imposed. Sexual assaults on young children within a family have attracted sentences of between 8 and 12 years or more in total, even where the offender has pleaded guilty and demonstrated remorse." (Citations omitted, emphasis supplied.)
- In Bishop v The Queen [2003] WASCA 79, Parker J, with whom Malcolm CJ and Murray J agreed, approved the observation of Ipp J (with whom Pidgeon and Rowland JJ concurred 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
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- totality principle, there is nothing to prevent a court from imposing a sentence of more than 20 years' imprisonment."
12 It can be seen that in this case the effective sentence of 8 years imposed, in respect of each complainant, for conduct which consisted of a series of escalating sexual demands on a young child, culminating in sexual intercourse, was within the range which is commonly considered to be appropriate for such offences. While the offences did not involve the extreme depravity or gratuitous sadism which often characterises what is referred to as the "worst category" of case, there were clearly aggravating features, including the position of trust occupied by the offender and the elements of persistence and premeditation. Apart from the plea of guilty, there were effectively no mitigating factors. In relation to the second complainant, the reference to his offending against the first in an attempt to entice her into participating in sexual behaviour was a further aggravating feature.
13 So far as the imposition of cumulative sentences of 8 years was imposed, the applicant was unable to point to anything other than the "totality principle" which would suggest that such a course was inappropriate. That principle requires that where there is a multiplicity of offences, the totality of the sentence must be proportionate to the totality of the criminal behaviour. Where the sentence is richly deserved or does no more than meet the crimes committed then a reduction will not result from applying the totality principle: Jarvis v R (1998) 20 WAR 201 per Ipp J at 205 - 207, Murray J at 211 - 214 and Anderson J at 215 - 217. In the circumstances of this case, it is my view that the totality of the sentence fell within a range proportionate to the totality of the applicant's criminal behaviour and there was no error in the imposition of cumulative sentences.
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