Coulter v The State of Western Australia
[2019] WASCA 215
•26 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: COULTER -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 215
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 2 DECEMBER 2019
DELIVERED : 10 DECEMBER 2019
PUBLISHED : 26 FEBRUARY 2020
FILE NO/S: CACR 36 of 2019
BETWEEN: TRACY COULTER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 673 of 2018
IND 2002 of 2018
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of 18 sexual offences against a child under the age of 13 - Total effective sentence of 21 years' imprisonment imposed - Whether the total effective sentence infringed the first limb of totality principle - Whether the sentence imposed in relation to the persistent sexual conduct offence was manifestly excessive - Whether the primary judge erred in characterising the persistent sexual conduct offending as falling within the 'worst category' of case
Legislation:
Criminal Code (WA), s 320(2), s 320(4), s 320(6), s 321A(4)
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | S Rafferty |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Seamus Rafferty Barristers & Solicitors |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
B v The Queen [2002] WASCA 236
Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343
KMB v The State of Western Australia [2010] WASCA 212
MPD v The State of Western Australia [2008] WASCA 57
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
RGT v The State of Western Australia [2017] WASCA 120
SCN v The State of Western Australia [2017] WASCA 138
REASONS OF THE COURT:
On 2 December 2019, this court heard the appellant's appeal against sentence. On 10 December 2019, the court unanimously allowed the appeal and resentenced the appellant. The orders of the court were as follows:
1.Leave to appeal granted on grounds 1, 2 and 3.
2.Appeal allowed.
3.The sentence imposed by the primary judge on the charge the subject of indictment number IND 2002 of 2018 (IND 2002) is set aside.
4.The individual sentences imposed by the primary judge on the charges the subject of indictment number IND 673 of 2018 (IND 673) are not disturbed.
5.All of the primary judge's orders for concurrency and cumulacy are set aside.
6.The appellant is resentenced to 9 years' imprisonment on the charge the subject of IND 2002.
7.The individual sentences imposed by the primary judge on the charges the subject of IND 673 are to be served concurrently with each other.
8.The total effective sentence for the charges the subject of IND 673 is therefore 8 years' imprisonment.
9.The total effective sentence for the charges the subject of IND 673 (8 years' imprisonment) is to be served cumulatively upon the new sentence for the charge the subject of IND 2002 (9 years' imprisonment).
10.The new overall total effective sentence for all of the charges the subject of IND 673 and IND 2002 is therefore 17 years' imprisonment.
11.The new sentence for the charge the subject of IND 2002 (9 years' imprisonment) is backdated to 26 January 2018.
12.The appellant remains eligible for parole.
The court said that it would publish its reasons for the orders at a later date. These are our reasons for making the orders.
Background
The appellant was convicted upon his pleas of guilty of 18 sexual offences against a female child born in late 2006,[1] to whom we will refer in these reasons as A.
[1] ts 169.
The offences were contained in two District Court indictments. Indictment 2002 of 2018 was against the appellant only. It alleged that between 30 November 2012 and 2 December 2013, at a suburb of Perth, the appellant persistently engaged in sexual conduct with A, a child under the age of 16 years (IND 2002). Indictment 673 of 2018 alleged 17 offences committed against A by the appellant, A's mother, S, and S's partner, W. All of these offences were alleged to have occurred at a suburb of Perth on 28 December 2014 (IND 673).
On 1 March 2019, the appellant was sentenced by Goetze DCJ to 13 years' imprisonment on IND 2002, and 8 years' imprisonment in respect of the offending in IND 673. His Honour ordered that these sentences be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 21 years' imprisonment. The appellant was made eligible for parole and the total effective sentence was backdated to commence on 26 January 2018.[2]
[2] ts 184 - 185.
The details of the individual counts and the sentences that were imposed by his Honour are set out in the following table:
No
Description
Outcome
Max Sentence
Sentence
IND 2002 of 2018
1
Between 30 Nov 2012 and 2 Dec 2013 at [a Perth suburb] the appellant persistently engaged in sexual conduct with the complainant, a child under the age of 16 years, contrary to s 321A(4) of the Code.
Guilty - 19 Nov 2018
20 years' imprisonment
13 years' imprisonment cumulative, eligible for parole.
IND 673 of 2018
1
On 28 December 2014 at [a Perth suburb] the appellant indecently recorded the complainant, a child under the age of 13 years, contrary to s 320(6) of the Code.
Guilty - 8 Jan 2019
10 years' imprisonment
4 years' imprisonment concurrent
2
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by penetrating her anus with the penis of W contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
3
On the same date and at the same place the appellant indecently dealt with the complainant, a child under the age of 13 years, by kissing her with an open mouth, contrary to s 320(4) of the Code.
Guilty - 8 Jan 2019
10 years' imprisonment
2 years and 6 months' imprisonment concurrent
4
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by introducing the penis of the appellant into her mouth, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment cumulative
5
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by penetrating her vagina with the tongue of S, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
6
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by rubbing her clitoris with her fingers, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
7
On the same date and at the same place the appellant indecently dealt with the complainant, a child under the age of 13 years, by S performing fellatio on the appellant in the presence of the complainant, contrary to s 320(4) of the Code.
Guilty - 8 Jan 2019
10 years' imprisonment
4 years' imprisonment concurrent
8
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by introducing the penis of the appellant into her mouth, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
9
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by penetrating her anus with the penis of W, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
10
On the same date and at the same place the appellant indecently recorded the complainant, a child under the age of 13 years, contrary to s 320(6) of the Code.
Guilty - 8 Jan 2019
10 years' imprisonment
4 years' imprisonment concurrent
11
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by introducing the penis of the appellant into her mouth, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
12
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by penetrating her anus with the penis of W, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
13
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by rubbing her vagina with a vibrator, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
14
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by introducing the penis of the appellant into her mouth, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
15
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by introducing the penis of the appellant into her mouth, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
16
On the same date and at the same place the appellant indecently dealt with the complainant, a child under the age of 13 years, by S performing fellatio on the appellant in the presence of the complainant, contrary to s 320(4) of the Code.
Guilty - 8 Jan 2019
10 years' imprisonment
4 years' imprisonment concurrent
17
On the same date and at the same place the appellant sexually penetrated the complainant, a child under the age of 13 years, by penetrating her anus with the penis of W, contrary to s 320(2) of the Code.
Guilty - 8 Jan 2019
20 years' imprisonment
8 years' imprisonment concurrent
For reasons that are irrelevant, S and W have yet to be sentenced.
The grounds of appeal
As amended at the hearing of the appeal, the appellant advanced three grounds of appeal.[3] Ground 1 alleged that the total effective sentence of 21 years' imprisonment infringed the first limb of the totality principle. Ground 2 alleged that the sentence of 13 years' imprisonment imposed on IND 2002 was manifestly excessive. Ground 3 alleged that, with respect to the offence in IND 2002, his Honour erred in characterising it as being amongst the worst of its kind that may attract, as a starting point, a sentence up to and including the maximum of 20 years' imprisonment.
[3] Appeal ts 2 - 3.
The facts of the offending
On 8 January 2019, the State prosecutor read to the sentencing judge a statement of material facts in respect of the appellant's offending. The facts alleged in that statement were not challenged in the court below nor in this court. His Honour incorporated those facts into his sentencing remarks.[4] Those facts may be summarised as follows.
Indictment 2002
[4] ts 169.
The offence in IND 2002 occurred over a period of just over one year, when A was aged between 6 and 7 years. The offending which constituted the offence occurred on three separate occasions at the appellant's home.[5]
[5] ts 169.
Present on the first occasion were the appellant, A's mother, another male adult and A. After showering together, A's mother administered a stupefying substance to A. A was shown a pornographic movie involving adults and children. The adults then performed various sex acts in the presence of A. A was then told to, in effect, imitate what she had seen. A performed an act of fellatio on the appellant and the other male. These acts were video‑recorded by A's mother. After A was given snacks, the appellant and the other male 'tickled' A's vagina with what she called a 'stick', but which appears to have been a vibrator. The appellant then penetrated A's mother with the vibrator. There followed another shower, the watching of another pornographic movie and the smoking of a pipe containing a stupefying substance. The appellant then introduced his penis into A's mouth.[6]
[6] ts 169 - 170.
The second occasion occurred at the appellant's home when A was 7. Present were the appellant, A and A's mother. What occurred was similar to the first occasion. A was provided with a stupefying substance and then she was shown a pornographic movie involving a mother, a father and a child. A's mother then performed an act of fellatio on the appellant and then she told A to behave likewise, which A did. After snacks, A performed another act of fellatio on the appellant, after which the appellant tickled A's vagina with the 'stick'.[7]
[7] ts 170.
The third occasion took place on A's 7th birthday, at the appellant's house. Present on this occasion were the appellant, A, A's mother, her partner W, and another male. As with the previous occasions, A was provided with a stupefying substance followed by the watching of a pornographic movie. The adults then engaged in a series of sex acts with each other in A's presence. At one point, W guided A to put her fist into the anus of the appellant, himself and the other male. A then performed fellatio on the three of them. This incident was, in part, video‑recorded by A's mother.[8]
Indictment 673
[8] ts 170 - 171.
The offending the subject of IND 673 all occurred at one location on 28 December 2014. However, it did not come to light until January 2018 when a USB device which contained two video files was discovered by chance in a short‑stay rental house at a Perth suburb. The video files recorded the offending. The device was handed to the police, who were able to identify A as the victim, and the appellant, A's mother and W as the offenders.[9]
[9] ts 172.
The sentencing judge found that the appellant and his co‑offenders acted in concert at the time the offences were committed, and each was jointly liable for the offences committed by the co‑offenders.[10] This finding was not challenged by the appellant. Some of the acts committed on A by the appellant and his co‑offenders occurred simultaneously.
[10] ts 168, 172.
The recordings were made by A's mother (count 1 and count 10). The first video shows: (a) the appellant tongue kissing A for an extended period of time (count 3); (b) the appellant introducing his penis into A's mouth and having her perform fellatio upon him (counts 4 and 8); (c) W inserting his penis into A's anus (counts 2 and 9); (d) A's mother performing cunnilingus on A (count 5); (e) A's mother rubbing A's clitoris with her fingers (count 6); and (f) A's mother performing an act of fellatio on the appellant while leaning over A's face (count 7).
The second video shows: (a) the appellant again inserting his penis into A's mouth and having her perform acts of fellatio (counts 11, 14 and 15); (b) W inserting his penis into A's anus (counts 12 and 17); (c) A's mother applying a vibrator to A's vagina and rubbing it for an extended period of time and then reapplying it (count 13); and A's mother, in A's presence, performing an act of fellatio on the appellant (count 16).
At various times during the second video, A's mother can be heard encouraging A while she was being subjected to the offending.
The appellant's personal circumstances
The appellant was born in New Zealand and was 51 years of age when he was sentenced.[11] He was sexually abused at a young age by a much older man. He left school in year 10. His literacy skills have been limited by dyslexia. The appellant is qualified as a boilermaker and has worked in that capacity since arriving in Western Australia in 2008. It was said that the appellant has a strong work ethic.[12]
[11] At ts 173 the appellant is erroneously described as being 57 years of age.
[12] ts 173.
The appellant has a history of illicit drug use and alcohol abuse. He has smoked cannabis throughout most of his life and has used methylamphetamine. Apart from Crohn's disease, the appellant enjoys good health. His Crohn's disease can be effectively managed in custody.[13]
[13] ts 173.
Apart from a conviction for driving under fine suspension, the appellant has no other convictions.[14]
[14] ts 173.
The victim impact statement
Unsurprisingly, as the victim impact statement shows, the offending of the appellant and his co‑offenders has had very significant adverse effects upon A. The offending affected her schooling, her sleep and her family life. She is unable to trust her parents and feels unsafe and unprotected. While she realises that nothing that occurred was her fault, she nevertheless feels guilty about what happened and confused.[15]
[15] ts 173 - 174.
The sentencing judge acknowledged that the appellant was not responsible for all of the adverse consequences of the offences committed against A and that parts of the victim impact statement were directed solely towards his co‑offenders.[16]
[16] ts 173 - 174.
However, as his Honour pointed out, A was only 12 years old at the time of making the victim impact statement, and has not yet experienced nor understood the full impact of the degradation and humiliation which was inflicted upon her.[17]
[17] ts 178 - 179.
The finding that the appellant's offending fell within the 'worst category'
In the proceedings below, the State submitted that, save for counts 3, 7 and 16 (the indecent dealing charges), each of the offences in IND 673 and the offence in IND 2002, fell within the 'worst category' of offending, being so grave that it warranted the imposition of the maximum penalty on each count, prior to deductions for mitigating factors.[18]
[18] ts 180.
Defence counsel submitted, in substance, that as serious as the offending was, it did not fall within the 'worst category'.[19]
[19] ts 180.
In his sentencing remarks, his Honour referred to the judgment of the High Court in R v Kilic.[20] His Honour observed that each case must be determined on its own facts and circumstances and that a case may fall within the 'worst category', despite it being possible to conceive of an even worse instance of offending.[21]
[20] R v Kilic [2016] HCA 48; (2016) 259 CLR 256.
[21] ts 180.
The sentencing judge made reference to SCN v The State of Western Australia[22] and MPD v The State of Western Australia,[23] both of which concerned sentences that were imposed for very serious sexual offending against children.
[22] SCN v The State of Western Australia [2017] WASCA 138.
[23] MPD v The State of Western Australia [2008] WASCA 57.
His Honour observed that the facts and circumstances of the present case were very different 'to most, if not all others'[24] and said that there were 'no comparable cases'.[25]
[24] ts 180.
[25] ts 180.
His Honour then set out various features of the appellant's overall offending which led him to conclude that the offences in both indictments fell within the 'worst category', being:
(a)A's very young age. She was 6 to 7 years old at the time of the offending the subject of IND 2002 and only 8 years old in respect of the offending the subject of IND 673.[26]
[26] ts 181.
(b)The repetition of the offending, with his Honour citing four separate occasions on which A was sexually abused.[27] Presumably his Honour was referring to the three occasions the subject of IND 2002 and the one occasion the subject of IND 673.
(c)The offence in IND 2002 was committed in the presence of between two and four adults, and the three offenders the subject of IND 673 committed offences upon A simultaneously or in quick succession.[28]
(d)The appellant's offending constituted a breach of trust, although less than that of a parent.[29]
(e)In IND 2002, A was shown pornographic videos and was given snacks. This, alongside the involvement of A's mother, groomed and normalised sexual activity with adults.[30]
(f)To enable the commission of the offence in IND 2002, A was provided with stupefying substances.[31]
(g)The offending in IND 2002 led to the compliant behaviour demonstrated in the offending in IND 673.[32]
(h)The recording of the offences the subject of both indictments and the dissemination of the video files in respect of IND 673 will leave A to fear that what occurred to her may 'come back to embarrass [her] again' later in life.[33]
(i)The appellant initially denied his offending.[34]
(j)The adverse effects that the offending has had, and will likely have, on A.[35]
(k)The depraved nature of the offending. In this regard, his Honour observed that 'there are no comparable cases'.[36]
[27] ts 181.
[28] ts 181.
[29] ts 181.
[30] ts 181.
[31] ts 181.
[32] ts 181.
[33] ts 181.
[34] ts 181.
[35] ts 181 - 182.
[36] ts 180.
The sentencing judge expressed his conclusion, as follows:[37]
So these matters then lead to a finding that this offending on both indictments falls within the worst category of case for this type of offence. It might be possible to imagine a worst case, involving, for example, penile/vaginal penetration.
However, than can be countered by observing that, in IND 673, the complainant was simultaneously sexually penetrated in her mouth and her anus by the two male offenders and also by the mother in the ways I've already described. This was all happening in quick succession.
In IND 2002, there was offending in company with sexual penetrations of various kinds, again as I have already mentioned, although acknowledging not vaginally. But there were multiple penetrations involving not only the complainant but also her mother and the two males or up to three males, and she was party to all of that.
It could also be said the complainant was not subjected to force, but she seems to have been groomed to accept and has, in fact, become accustomed to this type of offending such that she was totally corrupted to acquiescing it.
Now, with the offending being amongst the worst of its kind, that may therefore attract as a starting point penalties up to and including the maximum sentence before regard is had to matters of mitigation. (emphasis added)
[37] ts 182.
Other aspects of the sentencing remarks
His Honour identified the appellant's guilty pleas as the principal mitigating factor. In respect of the offence the subject of IND 2002, his Honour gave a discount of 25% pursuant to s 9AA of the Sentencing Act1995 (WA) and a discount of 15% on each of the offences the subject of IND 673.[38] His Honour explained the different s 9AA discounts by reference to the strength of the State's case on IND 673. His Honour observed that the appellant had no option, or no realistic option, but to enter pleas of guilty, having regard to the video files on the USB device.[39]
[38] ts 177 - 178.
[39] ts 177 - 178.
His Honour acknowledged the appellant's absence of a relevant criminal record and his remorse. In the absence of expert evidence, his Honour was not prepared to accept that the sexual abuse that the appellant suffered as a child was a mitigating factor.[40]
[40] ts 177.
The aggravating factors identified by his Honour are essentially those which gave rise to the finding that the appellant's offending fell within the 'worst category' of case.[41]
[41] ts 175 - 177.
In assessing the overall total effective sentence to be imposed upon the appellant, his Honour expressly referred to both limbs of the totality principle.[42]
[42] ts 184.
Ground 3
It is convenient to first deal with the allegation of express error contained in ground 3, which reads:
The sentencing judge erred in characterising the appellant's offending the subject of IND 2002 of 2018 as being amongst the worst of its kind that may therefore attract as a starting point penalties up to and including the maximum sentence before regard is had to matters of mitigation.
It may immediately be noted that the ground seeks only to challenge the sentence the subject of IND 2002 and not the sentences the subject of IND 673, even though his Honour held that most of the offending in IND 673 also fell within the 'worst category' of case. The justification for this approach is readily explained by the fact that, while his Honour referred to the offending charged in IND 673 as being in the 'worst category', the individual sentences he imposed were a long way short of the statutory maximum, after taking into account the mitigating factors.
In this court, counsel for the appellant accepted that the offending the subject of IND 2002 was very serious. Nevertheless, he submitted that, having regard to all the relevant circumstances, including those personal to the appellant, his Honour's categorisation of it as being in the 'worst category', before regard is had to matters of mitigation, was erroneous. In support of this submission, the appellant's counsel pointed to the following:
(a)The number of occasions in which the appellant engaged in sexual conduct with A, namely three, was the minimum number of occasions prescribed by s 321A(2) of the Code to constitute the commission of the offence.
(b)The appellant was not one of A's parents, nor did he have a parental role in relation to A.
(c)The appellant was remorseful for what he had done.
(d)The appellant had pleaded guilty to the charge at an early stage and received a 25% discount under s 9AA of the Sentencing Act1995 (WA).
(e)The appellant's generally good antecedents, including the absence of any prior record of sexual offences.
The appellant's counsel pointed to the circumstances of KMB v The State of Western Australia[43] for the purposes of comparison with the present case.
[43] KMB v The State of Western Australia [2010] WASCA 212.
Counsel for the respondent accepted that his Honour sentenced the appellant for the offence the subject of IND 2002 on the basis that the offending fell within the 'worst category' of case, before regard is had to matters of mitigation.[44] Counsel for the respondent, quite properly, accepted that a 13 year sentence of imprisonment for this offence would be indefensible if this court concluded that the appellant's offending did not fall within the 'worst category'.[45] The respondent submitted that, having regard to the aggravated circumstances identified by the sentencing judge, including A's young age and the progressive and simultaneous involvement of other adults on each of the three occasions constituting the offence, his Honour's categorisation of the offending as falling within the 'worst category' was justified.[46]
Legal principles
[44] Appeal ts 18.
[45] Appeal ts 25.
[46] Appeal ts 26.
The relevant legal principles as to the meaning of the expression 'worst category' were explained by this court in RGT v The State of Western Australia as follows:[47]
The expression 'worst case' is often used synonymously with the expression 'worst category'. The expression 'worst category' has a particular legal signification. What is meant by an offence falling within the 'worst category' has been explained in numerous cases. Most recently, the question was discussed by the High Court in R v Kilic.
In the joint judgment of Bell, Gageler, Keane, Nettle and Gordon JJ, the Court said that the expression refers to an instance of an offence which is so grave that it warrants the imposition of the maximum prescribed penalty for the offence. Both the nature of the crime and the circumstances of the offender must be considered in determining whether an offence falls within the 'worst category'. Once it is concluded that an offence falls within the category, it is beside the point that it may be possible to conceive of an even worse instance of the offence.
Their Honours warned against the use of the expression 'worst category'. Relevantly, their Honours said that where it was used to describe a case that does not warrant the imposition of the maximum penalty it was apt to cause to confusion and was likely to lead to error. As we understand it, the likely error referred to is the overstatement of the seriousness of the offence, which in turn may lead to the imposition of a sentence greater than the relevant circumstances require.
Where an offence, although grave, is not so grave as to warrant the imposition of the maximum prescribed penalty, a sentencing judge must consider where the facts of the offence and the offender lie on the spectrum that extends from the least serious instances of the offence to the worst category properly so called.
Their Honours said that in those cases where it is relevant to do so, the sentencing judge should, rather than use the expression 'worst category', state in full whether offence is or is not so grave as to warrant the maximum penalty.[48]
In The State of Western Australia v BLM, the majority held, having regard to the provisions of the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), that where a case falls within the worst category, a sentencing judge may impose the maximum penalty or something approaching it, notwithstanding that the sentence is outside any previously established sentencing range. (citations omitted)
[47] RGT v The State of Western Australia [2017] WASCA 120 [49] ‑ [54].
[48] R v Kilic [20].
Disposition
The allegation in ground 3 is an allegation of express error. The respondent did not argue that, if the ground was made out, the error was immaterial.
As observed in R v Kilic,[49] both the nature of the crime and the circumstances of the offender are to be considered in determining whether the case is of the worst type. Although the sentencing judge referred to R v Kilic, it is clear from the reasons he gave for concluding that IND 2002 fell within the 'worst category' that his Honour based his conclusion upon a consideration of the nature of the crime, rather than a considering the nature of the crime and the circumstances of the appellant. This is borne out by his Honour's statement:[50]
Now, with the offending being amongst the worst of its kind, that may therefore attract, as a starting point, penalties up to and including the maximum sentence before regard is had to matters of mitigation.
Accordingly, and with great respect, his Honour erred in his approach to the question of whether IND 2002 fell within the 'worst category'.
[49] R v Kilic [18].
[50] ts 182.
However, the focus of ground 3 is upon the characterisation of the nature of the crime and the circumstances of the appellant for the purposes of the offence in IND 2002, and whether the offence may properly be said to be in the 'worst category'. It is to this issue that we now turn.
Although each case must be decided on its own particular facts, and even worse cases exist or may be conceived of, a sentencer, called upon to decide whether an offence is within the 'worst category', may legitimately refer to comparable cases as a relevant, but not controlling, factor in deciding whether the case under consideration may properly be described as being in the 'worst category'. In this regard, the case of KMB and two of the cases analysed within it provide some guidance.
KMB was itself a bad case of its type, but not one which fell within the 'worst category'. The appellant was convicted after trial of seven counts in an indictment which alleged the commission of various sexual offences against his stepdaughter, including a count of engaging in a sexual relationship with a child under the age of 16 years, contrary to s 321A of the Code, as it then was, which carried a maximum penalty of 20 years' imprisonment.
In KMB, the offender's sexual relationship with the victim began when she was 7 years and 6 months old, and continued until she was 18. The three occasions relied upon by the prosecution as constituting the count were representative of ongoing and serious sexual acts committed against the victim. The three occasions involved an instance of, first, the offender penetrating the victim's vagina with his penis when she was about 8 years old, the second involved a penetration of the child's vagina with the offender's penis, culminating in ejaculation, and the third involved an act of cunnilingus by the offender, followed by digital penetration of the victim's vagina and an act of penile penetration of her vagina, again culminating in ejaculation.
The offender in KMB was sentenced to 10 years and 6 months' imprisonment for the offence contrary to s 321A. A ground of appeal challenging this sentence as manifestly excessive was dismissed. The circumstances of the offending in KMB were, in our view, worse than the circumstances of the offending in IND 2002.
The other cases analysed by Buss JA in KMB varied in their relative seriousness. However, two cases which involved offending contrary to s 321A of the Code, B v The Queen[51] and Dickens v The Queen,[52] stand out as more serious than the present case.
[51] B v The Queen [2002] WASCA 236.
[52] Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343.
In B v The Queen, the offender sought an extension of time to apply for leave to appeal against a total effective sentence of 20 years' imprisonment in respect of four counts of having a sexual relationship with a child under the age of 16 years. Each count related to a different child. The offending occurred over a period of approximately eight months. Each victim was aged between 3 and 6 years. The offender pleaded guilty. The sentencing judge described the offending as follows:[53]
The facts as to which no dispute was taken by the offender and as recited to the court are in brief terms as follows: all children are the children of the union of the offender and his now estranged partner. In July of 1999 the partner, the mother of the children, left the premises with all of the children save for the child N but within a fortnight all children, including the complainants, returned to live with the offender after he obtained their custody from the Family Court.
Dealing now with complainant N, between March and December 99 on many occasions, the exact extent of those occasions not being known, you, the offender, sexually penetrated her by inserting your fingers into her vagina or having penile vaginal intercourse with her. On at least one occasion there was anal penetration of the child followed immediately by vaginal penetration.
Turning to the child A, who is the second born of the twin girls, again, between March 99 and December 99 there were a considerable number of occasions, the exact number being unknown, when you, the offender, sexually penetrated the complainant by way of penile vaginal and penile anal penetration. In her interview with the interviewing police officer, this complainant said that this happened every second night.
I now turn to the third complainant, the boy R. This child would have turned 4 on 19 April 99 at which time his father was sexually abusing him. It is a harrowing experience to read the child's statement on pages 117 to 135 of the brief, or thereabouts, in which the child details the many occasions that he was sodomised by his father and the occasions upon which the father required this 4-year-old to perform fellatio upon him. Following that act, it appears that on at least one occasion the offender required the child to swallow the ejaculate.
I turn now to the child L, who was born on 5 June 95, and so therefore during the subject period she was between 3 and 4 years of age. The same types of activity, again, to an unknown extent, took place between the offender and the youngest child L in the same manner as previously described with the other children.
[53] B v The Queen [20].
The sentencing judge described the offending as 'almost the worst imaginable'.[54] The Court of Criminal Appeal dismissed the application to extend time. Miller J, with whom the other members of the court agreed, held that the sentences imposed were within an appropriate range open to the sentencing judge.[55] His Honour held that the sentencing judge was entitled to take the view that the offences were so close to the top of the range of seriousness and culpability that they ought to attract, as a starting point, the maximum sentence available.[56]
[54] B v The Queen [23].
[55] B v The Queen [34].
[56] B v The Queen [27].
In Dickens v The Queen, the offender was convicted on his fast‑track plea of guilty of two counts of having a sexual relationship with a child under the age of 16 years. The counts related to separate complainants. The appellant was sentenced to 5 years 4 months' imprisonment on the first count and 2 years 8 months' imprisonment on the second. The total effective sentence was therefore 8 years' imprisonment.
McLure J set out the details of the offending in these terms:[57]
The complainant on the first count is the applicant's step‑daughter. The offending began when the complainant was 10 years old and the applicant was 34 years old. The sexual relationship occurred in the period 10 February 1998 to 16 December 2002. The applicant had sexual intercourse with the complainant on regular occasions. The applicant impregnated the complainant when she was 13 years old. The pregnancy was terminated. The applicant's sexual activity with the complainant continued after the applicant had separated from the complainant's mother.
The sexual relationship the subject of the second count occurred in the seven month period between 1 November 1998 and 1 May 1999. The complainant was 15 years old at the time. Initially, the complainant slept over a number of times at the applicant's house. Some time later, the applicant moved in with the second complainant's mother for what turned out to be a two month stay. The sexual activity between the applicant and the complainant included fondling each other, masturbation and digital penetration by the applicant and oral sex.
[57] Dickens [5] and [6].
The appeal was upheld on totality grounds. The majority of the court ordered that 16 months of the term imposed for count 2 be served before the term of 5 years 4 months for count 1 began. Thus, the new total effective sentence was 6 years 8 months' imprisonment.
In respect of count 1, the circumstances of the offending in Dickens were more serious than the circumstances of the offending in IND 2002, having regard to the fact that the victim was the appellant's stepdaughter, the sexual relationship lasted almost five years (during which the appellant regularly had sexual intercourse with the victim) and the appellant impregnated the complainant when she was 13 years old. The offending in respect of count 1 in Dickens was not categorised as being in the 'worst category'.
A comparison of the relative seriousness of the abovementioned cases with the offence in IND 2002 points, in our view, against a conclusion that the offence in IND 2002 falls within the 'worst category'.
There are other facts and circumstances which, in our view, also go against a conclusion that the offence in IND 2002 falls within the 'worst category', including the appellant's early plea of guilty, his generally good antecedents and his remorse. Further, the appellant did not engage in penile penetration of the victim's vagina; he did not have parental responsibility of A; and there was an absence of any finding that the appellant posed an elevated risk of reoffending. The three occasions that constituted the offence were not said to be representative of other sexual offending against A.
Having regard to all of the relevant circumstances, we are satisfied that the appellant's offending in relation to IND 2002 was not within the 'worst category' of case, as explained in R v Kilic.[58] In our opinion, ground 3 has been made out. The sentence the subject of IND 2002 must be set aside. As the sentences for IND 673 were imposed at the same time as the sentence on IND 2002, and took into account the sentence imposed on IND 2002, the appellant falls to be resentenced for all of the offences on both indictments. In these circumstances, it is unnecessary to decide grounds 1 and 2.
[58] R v Kilic [18].
Resentencing
This court had all of the materials necessary to resentence the appellant. We will begin with the offence in IND 2002. The maximum penalty for the offence is 20 years' imprisonment. It is unnecessary to repeat the facts of the offending, the aggravating factors or the mitigating factors including the appellant's personal circumstances. While the offence does not fall within the 'worst category', it is nevertheless a very serious example of its type, bearing in mind the aggravating circumstances identified by the sentencing judge. The sentence to be imposed upon the appellant must properly punish the appellant and deter him and others from engaging in similar offending. The sentencing judge identified the relevant mitigating factors, the most significant of which was the appellant's plea of guilty. We would, as did the sentencing judge, give a discount of 25% pursuant to s 9AA of the Sentencing Act. Having regard to all of the relevant circumstances and all relevant sentencing factors, we resentence the appellant to 9 years' imprisonment on the charge the subject of IND 2002.
Turning now to the offences the subject of IND 673. Again, it is unnecessary to repeat the facts of the offending or the aggravating and mitigating factors identified by the sentencing judge. The appellant made no complaint about the individual sentences imposed on IND 673. There is no basis for imposing different sentences and we would not do so. Of course, questions of totality must be considered.
In order to appropriately reflect the totality principle, the individual sentences imposed in IND 673 should be served concurrently with each other. However, the total effective sentence for IND 673 should be served cumulatively upon the new sentence for IND 2002, having regard to their separate and distinct circumstances. Thus, the new overall total effective sentence imposed upon the appellant is 17 years' imprisonment. We are of the view that a new overall total effective sentence of that length properly reflects the appellant's overall criminality, the aggravating and mitigating factors and all of the circumstances of the case, including those personal to the appellant. We do not regard the new overall total effective sentence as 'crushing'.
The new sentence for the charge the subject of IND 2002 is backdated to 26 January 2018. The appellant is eligible for parole. He will be eligible to be considered for release on parole on and from 26 January 2033.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza26 FEBRUARY 2020
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