D v The Queen

[2003] WASCA 33

"D" -v- THE QUEEN [2003] WASCA 33

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 33
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:198/2002	Heard:	6 FEBRUARY 2003
Coram:	MALCOLM CJ MURRAY J MILLER J	Delivered:	6/03/03
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence reduced from 14 years to 11 years
Category:	B
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Parties:	"D" THE QUEEN
Catchwords:	Criminal law and procedure Sentencing One count of having a sexual relationship with a child under the age of 16 years, four counts of indecent dealing with a child between 13 and 16 years and two counts of sexually penetrating a child between 13 and 16 years Whether total sentence of 14 years excessive Whether individual sentences excessive
Legislation:	Criminal Code, s 321A(3), s 321(7)(b), s 321(8)(b)
Case References:	Cameron v R (2002) 187 ALR 65 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Jarvis v R (1993) 20 WAR 201 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR 295 R v Nevermann (1989) 43 A Crim R 347 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Woods v The Queen (1994) 14 WAR 341 Lowndes v R (1999) 195 CLR 665 The Queen v Rossi, unreported; CCA SCt of WA; Library No 7031; 20 April 1988 Wicks v R (1989) 3 WAR 372

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "D" -v- THE QUEEN [2003] WASCA 33 CORAM : MALCOLM CJ

MURRAY J
MILLER J

HEARD : 6 FEBRUARY 2003 DELIVERED : 6 MARCH 2003 FILE NO/S : CCA 198 of 2002 BETWEEN : "D"

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - One count of having a sexual relationship with a child under the age of 16 years, four counts of indecent dealing with a child between 13 and 16 years and two counts of sexually penetrating a child between 13 and 16 years - Whether total sentence of 14 years excessive - Whether individual sentences excessive

Legislation:

Criminal Code, s 321A(3), s 321(7)(b), s 321(8)(b)

(Page 2)

Result:

Appeal allowed

Sentence reduced from 14 years to 11 years

Category: B

Representation:

Counsel:

Appellant : Mr D Grace QC
Respondent : Mr S E Stone

Solicitors:

Appellant : Michael Tudori
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cameron v R (2002) 187 ALR 65
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Jarvis v R (1993) 20 WAR 201
Pearce v R (1998) 194 CLR 610
Postiglione v R (1997) 189 CLR 295
R v Nevermann (1989) 43 A Crim R 347
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Lowndes v R (1999) 195 CLR 665
The Queen v Rossi, unreported; CCA SCt of WA; Library No 7031; 20 April 1988
Wicks v R (1989) 3 WAR 372

(Page 3)

1 MALCOLM CJ: I agree with Miller J that this application for leave to appeal against sentence should be granted, the appeal allowed, the sentences imposed by the learned sentencing Judge set aside and substituted by the sentence proposed by Miller J with a direction that the sentences in relation to counts 2 – 7 inclusive be served concurrently with each other but cumulative upon the sentence in respect of count 1. The end result is a total of 11 years' imprisonment with an order for eligibility for parole in respect of all of the sentences imposed.

2 I would only add that this result is entirely consistent with the approach adopted to such cases in the detailed reasons of Anderson J in Woods v The Queen (1994) 14 WAR 341 at 349 – 359.

3 MURRAY J: I agree with Miller J that, for the reasons given by him, leave should be granted, the appeal allowed, the sentences quashed, and the sentences proposed by his Honour (aggregating a term of 11 years) should be substituted.

4 MILLER J: The appellant was indicted in the District Court at Perth on one count of having a sexual relationship with a child under the age of 16 years; four counts of indecently dealing with a child between the ages of 13 and 16 years; and two counts of sexually penetrating a child between the ages of 13 and 16 years. The child the subject of count 1 was 9 years of age at the time of commission of the offences and the child the subject of the other counts was 14 years of age.

5 The appellant pleaded guilty to the indictment and was sentenced by Hammond DCJ on 23 October 2002 to a total term of imprisonment of 14 years with eligibility for parole. The sentence was structured in the following way: on count 1 - 7 years' imprisonment; on counts 2, 3, 4 and 6 - 3 years' imprisonment in each case; on counts 5 and 7 - 7 years' imprisonment in each case. The sentences on counts 2, 3, 4, 5, 6 and 7 were directed to be served concurrently but cumulatively upon the term imposed on count 1. The sentence was directed to date from 15 October 2002.

6 The appellant seeks leave to appeal the sentences imposed by the learned trial Judge on two grounds. Those grounds and the particulars in support of them are as follows:

"1. Each of the sentences imposed upon the Applicant was manifestly excessive.

(Page 4)

Particulars

a. The sentences were manifestly excessive on their face.

b. Each of the sentences exceeded the range of sentence that was properly applicable to the circumstances of the Applicant and the circumstances of the offence.

c. Each of the sentences exceeded the sentence available in the sound exercise of the sentencing discretion.


2. The total effective sentence infringed the totality principle.

Particulars


a. The sentence was crushing.

b. The sentence was in excess of that available in the sound exercise of the sentencing discretion."

7 The facts revealed that the appellant had a sexual relationship with the child "JAL" at a time when she was 9 years of age and between 1 November 2001 and 31 January 2002. On three separate occasions on three different days, the appellant interfered with JAL whilst she and her sister were staying overnight at the appellant's home in Eden Hill. On the first occasion the appellant put himself on the mattress where JAL was sleeping and placed his hand inside her pyjama pants and over the area of her vagina. On the second occasion, the appellant again placed himself on the mattress and this time put his hand under JAL's pyjamas and inserted a finger into her vagina for a short time. On the third occasion, the appellant lay on the mattress next to JAL and took her hand and placed it upon his penis.

8 The facts in relation to the other counts related to the child "ELL" and the facts related to the Court by the Crown prosecutor revealed as follows: On count 2 the offence occurred between 1 and 20 January 2002 when the appellant drove ELL to Mandurah for the purpose of crabbing. Whilst sitting on the tailgate of his vehicle he touched her on the breasts outside her clothing. Count 3 occurred between 25 and 26 January 2002 when the appellant drove ELL to a house in Cervantes for a fishing

(Page 5)

weekend with friends. Whilst ELL was in bed later in the evening, the appellant entered the bedroom, woke her and touched her outside the vagina on the outside of her pants. Counts 4, 5, 6 and 7 were a continuation of the incident to which count 3 refers. The facts as recited by the Crown prosecutor in relation to these counts were as follows:

"Count 4: he then removed the sleeping bag, rolled the complainant back towards him and then pushed her legs apart and placed a hand beneath the complainant's pants over her vagina area. He moved his hands further between the complainant's legs, removed her tampon and got back off the bed. Count 5: he then returned to the bed with a yellow torch, pulled the complainant's shorts and underpants aside and shone the torch between her legs. The offender then inserted a finger into the complainant's vagina for a short time. Count 6: the offender then moved his hand up under the complainant's top and over her right breast area and pushed her legs open again with his hands. Count 7: he then placed his head between the complainant's legs and began to perform cunnilingus on her. The complainant jumped off the bed and left the room."

9 When sentencing the applicant the learned trial Judge outlined the facts in summary form and then turned to matters personal to the offender, pointing out that he was 53 years of age, had been married three times, was a director of a building company and obviously a successful business man. His Honour noted that the applicant had experienced problems in relation to abuse of alcohol, that his business had been in decline, and disputes and difficulties with his partner had aggravated his drinking problem. This led to an inability on his part to prevent himself from dealing with the children in the way in which he did.

10 His Honour went on to refer to various reports including the pre-sentence report and a psychological report and referred to the applicant's record. This revealed that in February 1992 he had been imprisoned for 10 years for a series of sexual offences against five female victims. Although his Honour did not mention it, those females included three step-daughters and two natural daughters. The crimes had occurred between 1985 and 1990 and involved genital touching, fellatio, digital penetration, cunnilingus and penile penetration.

11 The learned trial Judge made reference to and applied the principles of sentencing in sexual assault cases set out by Murray J in Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059;

(Page 6)

9 February 1996 where his Honour (at page 6) identified 12 criteria as factors to which attention would need generally to be given in sexual assault cases when deciding upon the imposition of sentence. The learned trial Judge made specific reference to several of these criteria, noting particularly the following matters:

(a) the seriousness of the fact that a 9-year-old child was involved in count 1;

(b) the element of perversion and deviance involved in the incidents relating to JLL;

(c) the enormous disparity in age and power between the appellant and the victims;

(d) the breach of trust which the appellant had perpetrated;

(e) the recidivism involved in the offences;

(f) the degree of remorse displayed by the appellant evident from his plea of guilty at the first opportunity;

(g) the adverse impact that the offences would have upon the complainants.

12 Having identified these various factors as relevant to the sentencing process, his Honour concluded that in relation to count 1 the starting point would have been 10 years but in recognition of the prompt and early plea of guilty, that would be reduced to 7 years.

13 His Honour then turned to counts 2-7, pointing out that in normal circumstances one would expect a term of imprisonment of 10 years for the totality of the conduct encompassed by those counts, but in this case that term would be reduced to 7 years and terms of imprisonment, as I have previously identified, would be imposed in relation to each of the counts.

14 It must be said in passing that his Honour approached the task of sentencing in relation to counts 2-7 in the wrong way. That is to say, his Honour identified first the total term of imprisonment appropriate and then apportioned it amongst the six counts. This was contrary to the direction given by the High Court in Pearce v R (1998) 194 CLR 610. However, nothing really turns upon that aspect of the matter.

15 Counsel for the appellant contended that insufficient weight was given by the learned trial Judge to any mitigating factors or favourable circumstances of the offender, save for the appellant's plea of guilty. However, it seems to me that his Honour clearly accepted that there was

(Page 7)

remorse illustrated by the plea of guilty and his Honour took notice of the pre-sentence and psychological report relating to the personal circumstances of the appellant and his prospects for rehabilitation. True it was his Honour made no specific reference to rehabilitation, but not every factor relevant to the sentencing process must be itemised by a trial Judge in these circumstances: see R v Nevermann (1989) 43 A Crim R 347 per Malcolm CJ at 350:

"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delays in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68, per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."

16 In this case the pre-sentence report and psychological report were only partially favourable to the appellant. The former contained a conclusion to the effect that the appellant expressed little, if any, victim empathy or insight into how his behaviour may have affected his victims, expressing remorse only when reminded that he had damaged and lost a friendship with the victim's parents. The author of the report added that, although the appellant had complied with treatment under community supervision orders in the past, it would appear that he had chosen not to use relapse prevention strategies and he remained a significant risk of reoffending. The psychological report described the applicant as a person whose response to testing suggested he was highly motivated for treatment, but ended with the conclusion that, although the appellant had a capacity to learn, a favourable treatment outcome was unlikely unless he chose to implement strategies which had previously been dismissed by him. He was assessed as "preventing a high risk of reoffence in a like manner".
(Page 8)

17 Although the Court was urged by counsel for the appellant to have regard to statements tendered to the trial Judge, in which people who knew the appellant testified to his remorse, it seems to me that it was open to the learned trial Judge to conclude that the real remorse in this case was evidenced by the plea of guilty, rather than independent remorse or contrition. A plea of guilty will, in some cases, import remorse (see Cameron v R (2002) 187 ALR 65 per Gaudron, Gummow and Callinan JJ at [11]). In the present case it is my view that the learned sentencing Judge took full account of such remorse as existed.

18 Central to the submissions of counsel for the appellant was the proposition that the discount given by the learned sentencing Judge related only to the plea of guilty and not to other factors in mitigation, including the applicant's prospects for rehabilitation and other factors personal to him. Whilst at first glance the discount of 30 per cent might appear to relate only to the plea of guilty, it is obvious that his Honour took into account matters personal to the offender and the contents of the pre-sentence report and psychological report in determining what the discounts should be. It was, on any view of it, a substantial discount from the starting point which the learned sentencing Judge identified. It should be said in passing that the learned sentencing Judge's adoption of the two-tiered sentencing approach was undesirable, as made clear in Cameron v R (supra) (see particularly McHugh J at [41]).

19 The Criminal Code provides very substantial maximum penalties for the offences committed by the appellant. In relation to count 1 (s 321A(3)), the maximum penalty is 20 years' imprisonment. In relation to counts 2, 3, 4 and 6 (s 321(8)(b)), the maximum penalty (by reason of the fact that the child was under the care, supervision or authority of the offender) is 10 years' imprisonment. The maximum penalty in relation to counts 5 and 7 (s 321(7)(b)) is 20 years' imprisonment, that maximum being fixed having regard to the fact that the child in question was under the care, supervision or authority of the offender.

20 In Woods v The Queen (1994) 14 WAR 341, Anderson J (with whom Malcolm CJ and Seaman J agreed) reviewed sentences and sentencing considerations in sexual assault cases over a number of preceding years. Although nearly nine years have elapsed since that decision and there appears to be a "firming up" of sentences in sexual assault cases in the District Court of Western Australia, Anderson J's conclusions are still generally applicable in sexual assault cases. His Honour said of intra-family sexual assaults (at 354):

(Page 9)

"Cases of intra family sexual assaults of young children that have attracted heavy sentences, that is, sentences of eight years or more in total, often, but not always, are cases where more than one child has been victimised or where there has been multiple offending over an extended period and the offending has included sexual penetration in one form or another, or where some degree of violence, cruelty or aggression or threats have been employed. In some cases, such as the Podirsky cases, all of those features are involved and these will generally attract very heavy sentences. In other cases not all of the features are present."

21 After reviewing the facts of the particular case in issue, his Honour pointed out (at 357) that there were many cases in which sentences of between 8 and 12 years had been imposed, but also cases in which sentences of 6 years or less had been imposed. Various examples were given and his Honour concluded, by reference to the facts of the case under consideration (at 359):

"There are many other cases involving a variety of circumstances. The question for this Court is whether, in the light of sentences commonly imposed for serious cases of prolonged sexual molestation within the family environment, involving sexual penetration of one form or another against two children of the family, an effective sentence of 11 years imprisonment ought to be reduced.

Whilst it is possible to distinguish the case from worst category cases such as Podirsky, Petchell and Jarvis, it is also possible to distinguish the case from those cases that might be regarded as being at the other end of the scale, such as Price, Ginder and Sullivan. It is the prolonged nature of the applicant's offending, the frequency of it and that there were two victims, that mainly distinguishes it from the latter category.

The offences against S were very serious, involving as they did penial penetration of her vagina which, although not complete, went to the stage of inducing pain. Repeated offending of that kind over an extended period against a nine year old girl, of itself warranted a custodial term of seven or eight years, notwithstanding all of the mitigatory circumstances that could be put in favour of the applicant."

(Page 10)

22 Against the background of this decision and other trends evident in sentencing in sexual assault cases, it seems to me that the individual sentences imposed by the learned trial Judge in the present case did exceed the range of sentence properly applicable. In my view the sentences should be restructured in the following way:

Count 1 - 6 years' imprisonment

Count 2 - 12 months' imprisonment

Count 3 - 18 months' imprisonment

Count 4 - 3 years' imprisonment

Count 5 - 5 years' imprisonment

Count 6 - 18 months' imprisonment

Count 7 - 5 years' imprisonment

23 The sentences imposed for the offence of indecent dealing were in each case 3 years, but there were differing levels of seriousness in relation to each of those offences, and the way in which I have restructured the sentences takes that into account.

24 In my view, the way in which the learned trial Judge dealt with the question of accumulation of the sentences was entirely correct. I would therefore direct that the sentences in relation to counts 2-7 inclusive be served concurrently, but cumulative upon the sentence imposed on count 1. The end result is a sentence of 11 years' imprisonment, in relation to which there should be eligibility for parole.

25 The appellant's grounds of appeal included the contention that the sentence imposed by the learned trial Judge had infringed the totality principle and was a crushing sentence. Reliance was placed upon a number of well-known authorities such as Postiglione v R (1997) 189 CLR 295 where the principle of sentencing known as "the principle of totality" is enunciated. In short, the principle enables a court to mitigate sentences that would otherwise be imposed, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for merciful intervention of the Court by way of reducing the total effect.

26 The decisions of this Court in Jarvis v R (1993) 20 WAR 201 and Vlek vThe Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 were also relied upon, particularly passages of Ipp J at 206 - 207, Murray J at 211 and Anderson J at 213 in the former case, and on the judgment of Anderson J at 10 in the latter where his Honour said of the totality principle:

(Page 11)

"The conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative."

27 Although in the present case the learned trial Judge made no reference to the totality principle (other than a reference to "the totality of the conduct encompassed by counts 2-7 on the indictment") it is obvious that his Honour was not unaware of the principle. Indeed, the structuring of the sentence to impose an effective sentence of 14 years indicates an intention on the part of the learned trial Judge to impose a sentence shorter than that which would probably otherwise be imposed. The sentence of 11 years, which I consider to be an appropriate sentence for the totality of the appellant's conduct, takes account of the totality principle and in my view, avoids what might otherwise be seen as a crushing sentence. For these reasons I would allow the appeal, set aside the sentences imposed by the learned trial Judge and substitute for them the sentences which I have previously indicated. The end result will be an overall sentence of 11 years' imprisonment with eligibility for parole.