CJF v The State of Western Australia
[2012] WASCA 69
•27 MARCH 2012
CJF -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 69
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 69 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:106/2011 | 2 FEBRUARY 2012 | |
| Coram: | MARTIN CJ BUSS JA MAZZA JA | 27/03/12 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| D | |||
| PDF Version |
| Parties: | CJF THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant convicted after trial Child sex offences Two counts of indecent dealing and four counts of sexual penetration Counts representative of ongoing sexual abuse occurring when the child was aged between about 9 and 13 years Appellant the stepfather of the child No remorse or contrition Total effective sentence infringed the first limb of the totality principle -Total effective sentence reduced from 14 years' to 12 years' imprisonment |
Legislation: | Criminal Code (WA), s 329 |
Case References: | BPR v The State of Western Australia [No 2] [2007] WASCA 200 GHS v The State of Western Australia [2006] WASCA 42 KC v The State of Western Australia [2008] WASCA 216 KMB v The State of Western Australia [2010] WASCA 212 Ly v The Queen [2007] NSWCCA 28 M v The State of Western Australia [2006] WASCA 256 MAS v The State of Western Australia [2012] WASCA 36 MPD v The State of Western Australia [2008] WASCA 57 PDS v The State of Western Australia [2006] WASCA 20 PP v The State of Western Australia [2004] WASCA 144 R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 RDC v The State of Western Australia [2012] WASCA 16 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 The State of Western Australia v Prince [2011] WASCA 22 Truscott v The State of Western Australia [2007] WASCA 62 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CJF -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 69 CORAM : MARTIN CJ
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 1111 of 2010
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial - Child sex offences - Two counts of indecent dealing and four counts of sexual penetration - Counts representative of ongoing sexual abuse occurring when the child was aged between about 9 and 13 years - Appellant the stepfather of the
(Page 2)
child - No remorse or contrition - Total effective sentence infringed the first limb of the totality principle -Total effective sentence reduced from 14 years' to 12 years' imprisonment
Legislation:
Criminal Code (WA), s 329
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
BPR v The State of Western Australia [No 2] [2007] WASCA 200
GHS v The State of Western Australia [2006] WASCA 42
KC v The State of Western Australia [2008] WASCA 216
KMB v The State of Western Australia [2010] WASCA 212
Ly v The Queen [2007] NSWCCA 28
M v The State of Western Australia [2006] WASCA 256
MAS v The State of Western Australia [2012] WASCA 36
MPD v The State of Western Australia [2008] WASCA 57
PDS v The State of Western Australia [2006] WASCA 20
PP v The State of Western Australia [2004] WASCA 144
R v Baldock [2010] WASCA 170; (2010) 243 FLR 120
(Page 3)
RDC v The State of Western Australia [2012] WASCA 16
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Prince [2011] WASCA 22
Truscott v The State of Western Australia [2007] WASCA 62
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341
(Page 4)
1 MARTIN CJ: This appeal against sentence should be allowed, and the sentences imposed by the sentencing judge adjusted in the manner proposed by Buss JA, so as to result in a total effective sentence of 12 years imprisonment, for the reasons given by Buss JA with which I agree.
2 BUSS JA: The appellant was convicted, after a trial in the District Court before O'Neal DCJ and a jury, of two counts of indecently dealing with, and four counts of sexually penetrating, a girl under the age of 16 years whom he knew to be his de facto child.
3 The maximum penalty for the indecent dealing offences, contrary to s 329(4) of the Criminal Code (WA) (the Code) read with s 329(10)(a) of the Code, is 10 years' imprisonment. The maximum penalty for the sexual penetration offences, contrary to s 329(2) read with s 329(9)(a) of the Code, is 20 years' imprisonment.
4 Each of the indecent dealing offences, being counts 1 and 2, involved the appellant touching the complainant's breasts and vagina, respectively.
5 Counts 3, 4 and 6 involved the appellant penetrating the complainant's vagina with his penis. Count 5 involved the appellant penetrating the complainant's vagina with his finger.
6 The trial judge imposed individual sentences, as follows:
Count 1: 12 months' imprisonment;
Count 2: 2 years' imprisonment;
Count 3: 6 years' imprisonment;
Count 4: 7 years' imprisonment;
Count 5: 4 years' imprisonment; and
Count 6: 6 years' imprisonment.
7 His Honour ordered that the sentences for counts 2, 3 and 5 be served concurrently with each other. His Honour also ordered that the sentences for counts 1, 4 and 6 be served cumulatively, but concurrently with the other sentences. The total effective sentence was therefore 14 years' imprisonment. A parole eligibility order was made. The total effective sentence was backdated to commence on 1 April 2011, being the date on which the appellant was taken into custody for these offences.
(Page 5)
8 The appellant has appealed to this court against the sentencing disposition.
The facts and circumstances of the offending
9 The six counts on the indictment were committed between April 2008 and November 2009 in the course of three separate incidents. At the material time, the complainant was aged 12 or 13 years and the appellant was 27, 28 or 29. The counts were representative of ongoing sexual abuse which commenced when the complainant was 9 years old.
10 The State adduced evidence of an incident which occurred in December 2005 at a roadhouse in South Australia. The appellant, the complainant, and the complainant's mother and brother were driving from New South Wales to Western Australia. One evening, while the family was staying at the roadhouse, the appellant pushed the complainant onto the back seat of the family's motor vehicle and penetrated her vagina with his penis. This caused the complainant to suffer pain and bleeding from her vagina. The trial judge, in his sentencing remarks, gave this description of what occurred:
You pressed the complainant's shoulders into the seat of the car and you said to her, 'It's going to hurt', while you lay on top of her. You pushed your penis into her vagina, despite the fact that she asked you, 'Please don't'. She asked you to stop, saying, 'Don't it's hurting', but you continued until you thought you heard someone coming.
When that happened, you jumped up, pulled your pants up, told the complainant to pull hers up, and said to her, 'Don't tell anyone' (ts 717 - 718).
- His Honour said that the evidence at trial established beyond reasonable doubt that the appellant had committed this act of penetration (ts 718).
11 The complainant gave evidence that the act of penetration at the roadhouse was the first incident she recalled of sexual abuse committed by the appellant upon her. She said that regular sexual abuse commenced within six months after the family's arrival in Perth. The trial judge recorded, in his sentencing remarks, that he was satisfied beyond reasonable doubt that the complainant's evidence on this issue was accurate (ts 719). His Honour described the general nature and frequency of the sexual abuse, as follows:
[W]hat was occurring was that with some regularity between every two weeks or a months [sic], you were sexually violating the complainant, frequently having sexual intercourse with her.
(Page 6)
- Sexual intercourse began after about a year after the family's arrival in the Perth area. Prior to that you were indecently dealing with the complainant by touching her vagina under her clothes.
The complainant had difficulty remembering the details of every sexual assault, as might be expected, given the frequency of such events, her young age and her desire not to remember such events (ts 720).
12 Counts 1, 2 and 3 occurred when the complainant was no more than 12 years old.
13 A tent had been pitched in the backyard of the family home. The complainant planned to sleep overnight in the tent. At night, the appellant, who had been drinking, entered the tent. The complainant was lying in a sleeping bag. The appellant unzipped the sleeping bag. He touched the complainant's breasts and then reached under her clothes and touched her vagina. These matters constituted counts 1 and 2.
14 The appellant then left the tent, but later that night he returned. He was now intoxicated. On this occasion, he unzipped the complainant's sleeping bag, pulled down her pants and forcefully had sexual intercourse with her. The act caused her physical pain. The appellant ignored the complainant's obvious distress. He left the tent after he had completed having intercourse. This matter constituted count 3. The next day, the appellant told the complainant that if she disclosed what had happened to anyone then he would kill her brother. The complainant believed that the appellant was capable of carrying out this threat.
15 Count 4 occurred when the complainant was aged 13 years.
16 The complainant was at home. She was lying on the floor, partly under her bed, carrying out some cleaning. The appellant came into the room, grabbed the complainant's ankles, pulled her from under the bed, and flipped her onto her back. He had been drinking. The appellant struck the complainant on her stomach, arms and elbow with his fists. He then pulled down the complainant's pants, pulled down his own pants, and forcefully penetrated her vagina with his penis. The complainant was frightened. The act of penetration caused her physical pain. This matter constituted count 4.
17 The trial judge accepted the complainant's evidence at trial to the effect that the appellant was 'a very violent person, screaming [while she was being abused] would only make it worse' (ts 721).
18 Counts 5 and 6 occurred when the complainant was 13.
(Page 7)
19 The complainant was asleep in the lower bunk bed in her room. Her younger brother had been having a nightmare earlier in the evening. As a result, the complainant let him sleep in the upper bunk. The appellant came into the room. The complainant awoke. The appellant got into bed with her. He digitally penetrated her vagina. The appellant then attempted to penetrate her vagina with his penis. The complainant attempted to avoid the penetration by squirming and moving her body. However, she soon detected that the appellant was becoming angry. She therefore acquiesced and the appellant, quite forcefully, had sexual intercourse with her. This caused her physical pain and she began crying. When the appellant had finished, he got up and left the room.
The trial judge's sentencing remarks
20 The trial judge referred to the appellant's personal circumstances. He was aged 31 years at the time of sentencing. Although his parents separated when he was a baby, his childhood was mostly happy and without abuse. The appellant had a partner whom he had met on the internet. She travelled from the Philippines to be with the appellant and, when the appellant was sentenced, she was pregnant with his child. The appellant has been in varied employment since leaving school in year 11. A psychological report notes that the appellant experiences symptoms of depression and anxiety. These may possibly be at a level which satisfies a diagnosis of depression. Since 2008 he has been prescribed antidepressant medication. The appellant has no prior record of offending.
21 His Honour noted numerous aspects which made the offending very serious. In particular:
(a) The appellant used threats against the complainant. For example, as I have mentioned, the appellant told the complainant that if she disclosed his offending then he would kill her brother.
(b) The appellant was frequently violent towards the complainant and often threatened her with violence.
(c) The appellant used violence and threats as 'a means to an end' (ts 722). He is violent towards those who are smaller and weaker than him.
(d) There was an element of coercion or force in relation to each of the counts, including express and implied threats of violence against the complainant, her mother and her brother.
(Page 8)
- (e) The complainant has suffered many difficulties as a result of the sexual abuse. She has harmed herself. Also, she has poor self-image and an eating disorder.
(f) Although a static-99 test carried out by the psychologist evaluated the appellant as being at a low risk of reoffending, the risk for sexual violence protocols suggested that he is at a significant risk of engaging in future sexual violence.
(g) The appellant is in 'extreme denial' in relation to the sexual violence he inflicted against the appellant (ts 728).
(h) The repeated sexual abuse engaged in by the appellant towards the complainant, over an extended period, is an indicator of the extent to which he is a risk to the community.
(i) The appellant demonstrates no remorse. He maintains that he did not offend as alleged, and he is unwilling to participate in any available treatment opportunities.
(j) Although the age difference between the appellant and the complainant was not as extreme as in some cases, it was substantial. He was in a position of authority in relation to her.
(k) The violence and threats of violence used by the appellant against the complainant were alternated with rewards including gifts and physical attention. The object of this course of conduct was to ensure compliance by the complainant with his sexual demands and to procure her silence.
22 The trial judge noted that there were only limited mitigating factors. His Honour referred to the absence of a prior criminal record. Also, the appellant had spent most of his adult life engaged in employment of various kinds. However, the offending was representative of a course of criminal conduct spanning several years. The mitigating factors arising from his lack of a criminal record and his good employment history did not lead to the conclusion that the offences for which he was convicted were isolated or an aberration, or that he was otherwise of good character.
The ground of appeal
23 The sole ground of appeal alleges that the trial judge erred in imposing a total effective sentence that infringed the first limb of the
(Page 9)
- totality principle. On 16 August 2011, Mazza J granted leave to appeal on this ground.
The merits of the ground of appeal
24 The appellant does not challenge the length of any of the individual sentences.
25 A complaint that a sentencing judge has infringed the totality principle also involves an allegation of inferred error. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
26 In the present case, as I have mentioned, the maximum penalty for the indecent dealing offences committed by the appellant is 10 years' imprisonment, and the maximum penalty for the sexual penetration offences committed by him is 20 years' imprisonment.
27 The primary sentencing considerations for offences of the kind in question are punishment of the offender, specific and general deterrence, and the protection of vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 - 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
28 It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
29 There is no 'tariff' for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the
(Page 10)
- circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] - [69] (Steytler P, McLure JA agreeing).
30 The guidance afforded by comparable cases is flexible rather than rigid. They do not fix an upper or lower limit. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. See Ly vThe Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [147] (Buss JA).
31 In recent years, there has been a 'firming-up' of sentences imposed for sexual offences against children, especially cases involving intra-familial sexual abuse. See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [288] (Wheeler & Roberts-Smith JJA & Miller AJA).
32 In the present case, counsel for the appellant and counsel for the State referred to numerous previous cases with at least some features comparable to the appellant's offending. These cases, and some other cases of relevance, include VIM; PDS v The State of Western Australia [2006] WASCA 20; GHS v The State of Western Australia [2006] WASCA 42; Truscott v The State of Western Australia [2007] WASCA 62; BPR v The State of Western Australia [No 2] [2007] WASCA 200; MPD; KC v The State of Western Australia [2008] WASCA 216; KMB v The State of Western Australia [2010] WASCA 212; The State of Western Australia v Prince [2011] WASCA 22; RDC v The State of Western Australia [2012] WASCA 16; and MAS v The State of Western Australia [2012] WASCA 36.
33 I have examined these decisions. It is unnecessary to set out the relevant facts and circumstances and the sentencing outcomes. A detailed review of the sentencing decisions in cases of serious sexual abuse against
(Page 11)
- children was undertaken recently by McLure P in Prince. Her Honour produced the following table [20]:
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Female appellant - 9 years 7 months |
|
|
|
|
|
|
(Page 12)
| |
|
|
|
|
|
|
|
|
|
|
|
|
34 In the present case, the appellant's offending was, without doubt, very serious. His attitude towards, and treatment of, the complainant was outrageous. The use of violence and threats against her, and the system of punishment and reward that he implemented, were grotesque. The deleterious effect on the complainant and her future prospects in life, as noted by the trial judge in his sentencing remarks and as revealed in the complainant's victim impact statement, are unsurprising. The chances of the complainant recovering from the destructive impact of the offending are, at best, uncertain. The appellant has evinced no remorse or contrition. He continues to deny his criminal conduct. The mitigating factors are few. The appellant did not have the benefit of the mitigation that a plea of guilty would have brought. The mitigating factors are overwhelmed by the severity of the offending.
35 The appellant's offending is not, of course, aggravated by the fact that the six counts on which he was convicted were representative of ongoing sexual abuse. The appellant cannot be (and is not being) punished for offences of which he has not been charged or convicted. However, the representative nature of the six counts in question demonstrates that the appellant's criminal conduct was not isolated or an aberration. He is not entitled to any leniency or discount on the basis that his offending was out of character.
(Page 13)
36 Nevertheless, when the facts and circumstances of the appellant and his offending, and the total effective sentence imposed by the trial judge, are compared to and contrasted with the facts and circumstances of, and the total effective sentences imposed in, previous cases with at least some features comparable to the present case, it is apparent that the total effective sentence of 14 years' imprisonment imposed on the appellant infringed the first limb of the totality principle. This total effective sentence was disproportionate to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances including the total effective sentences imposed in comparable cases. I am persuaded that the ground of appeal has been made out.
The outcome of the appeal
37 I would allow the appeal. This court has the material necessary to resentence the appellant.
38 The individual sentences imposed by the trial judge should not be disturbed. The orders for concurrency and accumulation made by his Honour should be set aside.
39 In my opinion, all sentencing factors relevant to the totality principle would be appropriately satisfied by the imposition of a total effective sentence of 12 years' imprisonment. This should be achieved by ordering that the sentences for counts 1, 4 and 5 be served cumulatively, and that the sentences for counts 2, 3 and 6 be served concurrently with each other and concurrently with the other sentences. The appellant should continue to be eligible for parole. The new total effective sentence should be taken to have taken effect on 1 April 2011.
40 MAZZA JA: I agree with Buss JA.
Key Legal Topics
Areas of Law
-
Criminal Law
Legal Concepts
-
Appeal
-
Criminal Liability
-
Sentencing
-
Child Sex Offences
25
26
1