Cyd v The State of Western Australia
[2018] WASCA 66
•11 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CYD -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 66
CORAM: BUSS P
MAZZA JA
HEARD: 8 MARCH 2018
DELIVERED : 11 MAY 2018
FILE NO/S: CACR 214 of 2017
BETWEEN: CYD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
File Number : IND BUN 48 of 2017
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of four counts involving two episodes of offending - One episode comprised one count of unlawful detention and one count of unlawful and indecent assault - The other episode comprised one count of unlawful detention and one count of unlawful and indecent assault - All offending committed against the same victim - Pleas of guilty - Total effective sentence of 9 years' imprisonment - Manifest excess - Totality principle
Legislation:
Criminal Code (WA), s 324, s 333
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ackley v The State of Western Australia [2013] WASCA 199
Atkinson v The State of Western Australia [2017] WASCA 154
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Free v The State of Western Australia [2006] WASCA 259
FWB v The State of Western Australia [2016] WASCA 118
Giglia v The State of Western Australia [2010] WASCA 9
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McAllister v The State of Western Australia [2017] WASCA 183
MPD v The State of Western Australia [2008] WASCA 57
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Doyle [2017] WASCA 207
THG v The State of Western Australia [2012] WASCA 139
Vilai v The Queen [1999] WASCA 275
JUDGMENT OF THE COURT:
The appellant has applied for leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty, of four counts in an indictment.
Count 1 alleged that on 18 December 2016, at Mungalup, the appellant unlawfully detained M, contrary to s 333 of the Criminal Code (WA) (the Code).
Count 2 alleged that, on the same date and at the same place as in count 1, the appellant unlawfully and indecently assaulted M by rubbing her breasts and vagina, and that the appellant was armed with an offensive instrument, namely a set of pliers, and that the appellant was in a family and domestic relationship with M, contrary to s 324 of the Code.
Count 3 alleged that on 18 February 2017, at Bunbury, the appellant unlawfully detained M, contrary to s 333 of the Code.
Count 4 alleged that, on the same date as in count 3 at Boyanup, the appellant unlawfully and indecently assaulted M by forcing her to undress and taking photographs of her naked body and that the appellant was in a family and domestic relationship with M, contrary to s 324 of the Code.
On 22 September 2017, Davis DCJ imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 4 years;
(b)count 2: 2 years;
(c)count 3: 5 years; and
(d)count 4: 2 years.
Her Honour ordered that the sentence for count 1 be served cumulatively upon the sentence for count 3 and that the sentences for counts 2 and 4 be served concurrently with each other and concurrently with the sentence for count 3. The total effective sentence was therefore 9 years' imprisonment. The total effective sentence was backdated to 20 February 2017. A parole eligibility order was made.
We would refuse leave to appeal. The appeal is therefore taken to have been dismissed. Our reasons are as follows.
The facts and circumstances of the offending
The facts and circumstances of the offending were as follows.
At the time of the offending, the appellant was aged 37 and M was aged 18.
The appellant was M's stepfather. The appellant had been in a relationship with M's mother and had been M's stepfather since M was aged 5.
On the evening of 18 December 2016, the appellant took M for a driving lesson in his vehicle. The vehicle could be operated on either petrol or gas.
At about 8.30 pm the appellant and M were travelling on a country road. M was driving and the appellant was in the front passenger seat. The appellant operated a switch on the dashboard that changed the fuel from petrol to gas. The gas tank contained little fuel and, consequently, the vehicle lost power and stopped. The appellant began driving his vehicle. He reversed it from the country road into a secluded gravel track.
The appellant told M that he was going to walk along the country road and endeavour to obtain a mobile telephone signal to enable him to call for assistance. He took a jumper, which he had folded to conceal other items, from the back seat and walked along the country road.
Shortly afterwards, the appellant returned to his vehicle carrying a set of pliers. He was wearing a mask with a voice‑changing mechanism which made his voice sound robotic.
The appellant opened the passenger door of his vehicle. He confronted M with the set of pliers and held them to her throat. She believed the pliers were a knife. The appellant tied M's hands together behind the front passenger seat, and placed cable ties around her neck which he secured to the seat's headrest.
The appellant then sexually assaulted M by placing his hand under her top and fondling her breasts. He also rubbed her vaginal area on the outside of her clothing.
While the appellant was sexually assaulting M, he told her that she would be gang‑raped and then cut into little pieces. M was terrified. She cried loudly.
M's loud crying caused the appellant to desist. He cut the cable ties from M's neck and ran away. Shortly afterwards, the appellant returned to his vehicle without the set of pliers or the mask with the voice‑changing mechanism. He pretended that he knew nothing of the incident which had occurred and drove M to her home.
On 19 December 2016 and 4 January 2017, the appellant participated in electronically recorded interviews with police. During the interviews the appellant claimed to have no knowledge of and to have had no involvement in the assault on M.
After the interview on 4 January 2017, the appellant was charged with counts 1 and 2 and released on bail with protective conditions.
On 18 February 2017, M went to her family home to visit her mother and siblings.
The appellant also resided at the family home. However, as a result of the protective bail conditions, the appellant was not permitted to be present when M visited the family home.
The appellant waited for M to leave the family home. When M left in her vehicle the appellant followed in his vehicle.
The appellant had covered his vehicle's two spotlights with blue and red plastic covers. He caused the spotlights to turn on and off intermittently. This gave the impression that his vehicle was a police vehicle.
M believed that the appellant's vehicle was, in fact, a police vehicle. She stopped. The appellant approached M's vehicle after disguising his appearance and altering his voice by the use of a voice‑changing mechanism.
The appellant forced M to move from the driver's seat to the front passenger seat of her vehicle. He wrapped a bandage around her head and eyes for the purpose of preventing her discovering his identity.
Next, the appellant drove M's vehicle to a gravel road near a country town. During the journey M managed to displace part of the bandage that was covering her eyes. She recognised the appellant.
The appellant stopped M's vehicle on the gravel road and demanded that M remove her clothing. He placed duct tape over M's eyes after discovering that part of the bandage around her head and eyes had been displaced. The appellant then forcibly removed M's clothing.
After M's clothing had been removed, the appellant used her mobile telephone to take a series of photographs of her naked body, including her breasts and vagina.
The appellant sent the photographs to his personal mobile telephone together with a text message, purporting to be from M, which stated, 'Are u going to fuck me Saturday I'll talk to u'.
Later, the appellant sent text messages from his personal mobile telephone to M's mobile telephone. In the text messages he claimed that he was going to make a complaint to the police that he had received the naked photographs of M.
After he took the series of photographs of M's naked body, the appellant drove M, in M's vehicle, to the place where he had earlier deceived her to stop.
The appellant left the victim's vehicle while she still had the duct tape over her eyes. He told her to count to 200 before she left the area.
Next, the appellant drove his vehicle to a secluded bush location where he buried a number of items including the red and blue plastic covers and the voice‑changing mechanism.
On 19 February 2017, the appellant was arrested. He participated in an electronically recorded interview with police. The appellant admitted the material facts of counts 3 and 4. He claimed to have committed those offences with a view to escaping prosecution in relation to counts 1 and 2. During the interview the appellant also admitted the material facts of counts 1 and 2.
The sentencing judge's sentencing remarks and the appellant's personal circumstances and antecedents
The sentencing judge recounted the facts and circumstances of the offending in her sentencing remarks.
Her Honour referred to the impact of the offending on M:
After the second incident, [M] had to sell her car because she could not stand to be in it or even look at it because it brought back flashbacks and memories.
Although [M] has managed to buy another car since she will not drive at night unless she is accompanied by someone and all the doors are locked. She is obviously affected by your offending. She is on medication, taking antidepressants. She trusts only a handful [of] people. She generally feels uncomfortable around people in most circumstances. She still cannot sleep without the light on. She still suffers from nightmares and flashbacks. She has begun counselling. She has said she is very sad, angry and confused, extremely hurt and at times lonely.
While [M] has been given the opportunity to enrol at university and she is studying and doing her best, she has found it very difficult to leave the safety and security of her bedroom. She’s also finding it hard to concentrate and retain information (ts 34 ‑ 35).
The information before the sentencing judge included a pre‑sentence report dated 31 August 2017 and a psychological report dated 14 July 2017 from Steve Jobson, a registered psychologist.
As to the first incident, the appellant told Mr Jobson that M was in a relationship with a young man and had decided to leave the family home to live with him. The appellant and M's mother had a negative view of the relationship. The appellant told Mr Jobson that he committed counts 1 and 2 with a view to 'scaring' M by making her believe that the attacker was her boyfriend.
As to the second incident, the protective bail conditions and the consequent loss of contact with his family caused the appellant significant emotional distress. He believed that if counts 1 and 2 were discontinued he would be able to reconcile with M and other members of his family. The appellant told Mr Jobson that he committed counts 3 and 4 with a view to creating the impression that he was not the offender in relation to counts 1 and 2. He added that he 'couldn't figure out another way of getting [M] home'. The appellant claimed that he had intended to send the naked photographs of M to her boyfriend's mobile telephone, but had inadvertently sent them to his own mobile telephone.
Mr Jobson said that testing and assessment he had undertaken did not reveal that the appellant had a personality disorder. However, the appellant did have 'difficulty with problem solving, significant difficulty addressing emotional issues and dealing with emotional distress, longstanding childhood issues, and poorly developed general communication and conflict management skills and strategies'.
The sentencing judge placed 'little weight on' Mr Jobson's views that 'these current offences were an aberration, that they were unlikely to have had a specific sexual intent and [that] they [represented] an impulsive and awkward attempt to maintain a sense of personal emotional security through the stability of [his] family'. Her Honour's reasons for, in effect, rejecting those views were as follows.
First, although her Honour accepted that counts 1 and 2 were an aberration, it could not be said that the second incident relating to counts 3 and 4 was an aberration.
Secondly, her Honour agreed with the State's submission that there was an element of 'sexual intent' in the offences. That was apparent from the appellant's actions. During the first incident the appellant fondled M's breasts and rubbed her vaginal area on the outside of her clothing. He told her that she would be gang‑raped. During the second incident the appellant forcibly removed M's clothing and took a series of photographs of her naked body, including her breasts and vagina.
On 7 February 2017, between the first and second incidents, the appellant sent M a text message from someone else's mobile telephone, which said:
Were someone you meet on 18 December listing very carefully. I just have a video of you sucking your dad's cock and a picture of you seeing your dad at Eaton the other night to your stepdad. You do what I say or I send the video and pic to the police and you and your father will be charged with a false report - reporting - that holds a sentence of 25 years each and your dad will break. So your grandparents lose everything they own. Do you understand me? Say why/N (ts 36).
When M did not reply the appellant sent her another text message which stated, 'Answer me now'. M then replied, 'Yes'. Her Honour said the appellant's original text message was 'obviously sexual in nature' and she had no doubt that the message contributed to M's fear and distress.
Thirdly, the offences could not be described as 'impulsive and awkward' because the offending was planned and premeditated. Ultimately, the appellant told the police that he had planned counts 1 and 2 'probably two days before'. Counts 1 and 2 involved the appellant obtaining the items he needed for the offending and hiding them in the back of the vehicle. Ultimately, the appellant told the police that early in the morning on the day he committed counts 3 and 4 he purchased another mask and removed the voice‑changing mechanism from the mask for use in committing those offences. The appellant 'went to some trouble' to give his vehicle the appearance of a police vehicle. He spent time rigging a piece of wire in his vehicle so he could cause his spotlights to flash.
The sentencing judge characterised the offences as very serious. Her Honour based that characterisation on a number of features.
First, both incidents involved premeditation and planning.
Secondly, in both incidents the appellant used a disguise and a voice‑changing mechanism to hide his identity. On the appellant's account, the purpose of the disguise and the voice‑changing mechanism was, in the context of the first incident, to induce M to believe that her boyfriend was the offender and, in the context of the second incident, to deflect responsibility for the first incident from himself.
Thirdly, the offences were committed in circumstances designed by the appellant to instil fear into M.
Fourthly, M was a slightly built and vulnerable young woman with whom the appellant was in a trusting family relationship. He betrayed that trust. Although M considered the appellant to be her father, the appellant subjected her to fear and humiliation on two occasions. The offending involved a gross violation of her person.
Fifthly, both incidents occurred at night and involved the appellant driving M to a remote location.
Sixthly, counts 1 and 2 involved the use of force and physical restraints. The appellant used cable ties to secure M's neck against the seat's headrest and to fasten her hands behind the seat. The restraints facilitated the appellant's sexual assault of M.
Seventhly, the appellant used trickery in relation to counts 3 and 4. He disguised his vehicle to give it the appearance of a police vehicle. The appellant impersonated a police officer to induce M to stop. He then blindfolded M, drove her to an isolated location, forcibly removed her clothing and took indecent photographs of her. The appellant knew that M was extremely vulnerable because of the offending the subject of counts 1 and 2.
Counts 3 and 4 were aggravated by the offending conduct having occurred while the appellant was on bail, with protective conditions, after having been charged with counts 1 and 2.
Her Honour referred in detail to Mr Jobson's report. The report included details of the appellant's personal circumstances and antecedents.
The sentencing judge noted the appellant's pleas of guilty and accepted that he had shown remorse. Her Honour accorded the appellant a discount of 20% in relation to counts 1 and 2 and 25% in relation to counts 3 and 4 for the pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).
Her Honour recognised that M had not suffered any bodily harm in the course of the offending and that there had been no sexual penetration.
The appellant did not have a relevant prior criminal record. His previous convictions were for traffic offences.
The sentencing judge mentioned that the appellant had cooperated with the authorities after he had committed counts 3 and 4. Her Honour also accepted that some of the appellant's personal circumstances mentioned in Mr Jobson's report were mitigating.
The grounds of appeal
The appellant relies on three grounds of appeal.
Ground 1 alleges, in essence, that the sentence of 5 years' immediate imprisonment for count 3 was manifestly excessive.
Ground 2 alleges, in essence, that the sentence of 4 years' immediate imprisonment for count 1 was manifestly excessive.
Ground 3 alleges, in essence, that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle.
The merits of grounds 1 and 2
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The maximum penalty for unlawfully detaining another person, contrary to s 333 of the Code, is 10 years' imprisonment.
The maximum penalty for unlawfully and indecently assaulting another person in circumstances of aggravation, contrary to s 324 of the Code, is 7 years' imprisonment.
The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence.
It is well-established that in cases of intra-familial sexual abuse and related offending, 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, for example, MPD v The State of Western Australia.[1]
[1] MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA; Wheeler & Buss JJA agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
There is no 'tariff' for offences of the kind committed by the appellant because of the great variation that is possible in the 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 penalty and all relevant sentencing factors.
If, in a particular case, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick with which to judge the adequacy of the sentence imposed at first instance. See Munda v The State of Western Australia;[2] The State of Western Australia v Doyle.[3]
[2] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[3] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[4]
[4] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act.
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[5]
[5] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
It is difficult to find previous cases which are broadly comparable with the appellant's offending in relation to counts 1 and 3. We have, however, examined a number of cases including Vilai v The Queen;[6] Free v The State of Western Australia;[7] THG v The State of Western Australia;[8] Ackley v The State of Western Australia;[9] FWB v The State of Western Australia;[10] Atkinson v The State of Western Australia;[11] McAllister v The State of Western Australia;[12] and the unlawful detention cases referred to in those decisions. We have also considered other cases cited by the appellant in his appellant's case.
[6] Vilai v The Queen [1999] WASCA 275.
[7] Free v The State of Western Australia [2006] WASCA 259.
[8] THG v The State of Western Australia [2012] WASCA 139.
[9] Ackley v The State of Western Australia [2013] WASCA 199.
[10] FWB v The State of Western Australia [2016] WASCA 118.
[11] Atkinson v The State of Western Australia [2017] WASCA 154.
[12] McAllister v The State of Western Australia [2017] WASCA 183.
In our opinion, it is not reasonably arguable that the sentence of 4 years' immediate imprisonment for count 1 or the sentence of 5 years' immediate imprisonment for count 3 was manifestly excessive. In particular, when each of those sentences is viewed from the perspective of the maximum penalty (10 years' imprisonment), and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:
(a)the objective facts and circumstances of each offence;
(b)the egregious nature of each offence;
(c)the vulnerability of M;
(d)the serious or aggravating factors, referred to by her Honour, which are relevant to each offence;
(e)the relevant general sentencing pattern;
(f)the mitigating factors mentioned by her Honour, including the plea of guilty on each count; and
(g)the appellant's personal circumstances and antecedents,
we are satisfied that it is not reasonably arguable that the sentence for count 1 or the sentence for count 3 is unreasonable or plainly unjust.
There is no merit in ground 1 or ground 2.
The merits of ground 3
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.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[13] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia.[14]
[13] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[14] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
We are satisfied that it was necessary, in order properly to mark the very serious nature of the appellant's overall offending, for the individual sentences imposed on each of counts 1 and 3 to be served cumulatively. Counts 1 and 3 involved separate, distinct and very serious offending.
In our opinion, after taking into account the maximum penalties for the offences; the circumstances of the offending viewed as a whole; the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the appellant's personal circumstances and antecedents; the aggravating and mitigating factors referred to by the sentencing judge; and all relevant sentencing principles, it is not reasonably arguable that the total effective sentence of 9 years' imprisonment was unreasonable or plainly unjust.
The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those personal to the appellant) and all relevant sentencing principles. It is not reasonably arguable that error should be inferred from the sentencing outcome.
Ground 3 is without merit.
Conclusion
None of the grounds of appeal has a reasonable prospect of success. Leave to appeal should be refused and the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS9 MAY 2018
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