D v The Queen
[2000] WASCA 137
•22 MAY 2000
"D" -v- THE QUEEN [2000] WASCA 137
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 137 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:18/2000 | 1 MAY 2000 | |
| Coram: | PIDGEON J WALLWORK J MILLER J | 22/05/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | "D" THE QUEEN |
Catchwords: | Criminal law Sentence Appeal Sexual offences "Tariff" 5 years' imprisonment for multiple offences against three different complainants Nothing excessive in sentence Turns on own facts |
Legislation: | Criminal Code, s 328, s 329(4) |
Case References: | De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Dempsey v R, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Hinkley, unreported; CCA SCt of WA; Library No 7746; 21 July 1989 Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 Price v The Queen (1988) 33 A Crim R 359 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Ginder (1987) 23 A Crim R 1 R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 R v Podirsky (1989) 43 A Crim R 404 Squance v The Queen, unreported; CCA SCt of WA; Library No 8276; 31 May 1990 Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990 Trescuri v R [1999] WASCA 172 Woods v R (1994) 14 WAR 341 Podirsky v R (1990) 3 WAR 128 R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999 R v Fancourt, unreported; CCA SCt of WA; Library No 8319; 18 June 1990 R v GP (1997) 18 WAR 196 R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 Smith v R, unreported; CCA SCt of WA; Library No 940285; 2 May 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "D" -v- THE QUEEN [2000] WASCA 137 CORAM : PIDGEON J
- WALLWORK J
MILLER J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Appeal - Sexual offences - "Tariff" - 5 years' imprisonment for multiple offences against three different complainants - Nothing excessive in sentence - Turns on own facts
Legislation:
Criminal Code, s 328, s 329(4)
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr P G Giudice
Respondent : Mr R E Cock QC
Solicitors:
Appellant : George Giudice Law Chambers
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dempsey v R, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Hinkley, unreported; CCA SCt of WA; Library No 7746; 21 July 1989
Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993
Price v The Queen (1988) 33 A Crim R 359
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Ginder (1987) 23 A Crim R 1
R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
R v Podirsky (1989) 43 A Crim R 404
Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990
Trescuri v R [1999] WASCA 172
Woods v R (1994) 14 WAR 341
(Page 3)
Case(s) also cited:
Podirsky v R (1990) 3 WAR 128
R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999
R v Fancourt, unreported; CCA SCt of WA; Library No 8319; 18 June 1990
R v GP (1997) 18 WAR 196
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Smith v R, unreported; CCA SCt of WA; Library No 940285; 2 May 1994
(Page 4)
1 PIDGEON J: I agree with the reasons to be published by Miller J.
2 WALLWORK J: I agree with the reasons for judgment of Miller J and to the order proposed by his Honour.
3 MILLER J: The appellant was convicted on his plea of guilty of one count of unlawful and indecent assault (Criminal Code, s 328) and 10 counts of indecently dealing with a child under the age of 16 years who he then knew to be his lineal relative (Criminal Code, s 329(4)). The maximum sentence for the offence of unlawful and indecent assault was 4 years and for indecently dealing with a child under the age of 16 known to be a lineal relative, 10 years' imprisonment. The appellant was sentenced by Groves DCJ to 1 year's imprisonment for unlawful and indecent assault and for 2 years' imprisonment in relation to each of the other counts. On counts 2-7 the sentences were ordered to be served concurrently and likewise on counts 8-11, but the sentence imposed on count 1 and the sentences imposed on counts 2-7 and 8-11 were all ordered to be served cumulatively, with the result that the appellant was sentenced to an effective term of imprisonment of 5 years. The reason for the trial Judge separating the sentences on counts 2-7 and counts 8-11 was because they respectively related to different complainants.
4 In the course of his sentencing remarks the learned trial Judge looked at all sentencing options but concluded that the circumstances of the case were such that a fixed term of imprisonment was the only disposition of the matter which was open. His Honour stated that the case had caused him difficulty and in considering the appropriate sentence he had referred to a number of recent decisions of Court of Criminal Appeal, including Dempsey v R, unreported; CCA SCt of WA; Library No 960059; 9 February 1996, Woods v R (1994) 14 WAR 341, R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998, R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 and Trescuri v R [1999] WASCA 172. As a starting point for the appropriate sentence to reflect the course of criminal conduct engaged in by the appellant the trial Judge considered a sentence of 8 years' imprisonment would be appropriate, a range of 7-9 years for the appellant's conduct being the range which his Honour considered applicable. Having taken a starting point of 8 years' imprisonment, the learned trial Judge discounted that sentence by 37.5 per cent to take account of the appellant's early plea of guilty and the other mitigating factors which he identified.
(Page 5)
5 The appellant contends that the sentence imposed by the learned trial Judge was manifestly excessive for the following reasons:
1. The 8 years which the learned Trial Judge thought was warranted by the course of criminal conduct was manifestly excessive.
2. The period of 7-9 years which was decided by His Honour to be the appropriate range for this type of behaviour was manifestly excessive.
3. The discount of 37.5 per cent from the 8 year "appropriate" sentence was manifestly insufficient and should have been more in the range of 50 per cent.
4. His Honour the trial Judge failed to place sufficient weight on the psychiatric report and especially the finding of the psychiatrist that there was a low risk of re-offending.
5. His Honour was incorrect in finding that the good antecedents could not be weighty mitigating factors in this case.
6. His Honour misapplied the totality principle in arriving at a sentence of 8 years being the appropriate sentence for the criminal conduct in question.
7. His Honour gave insufficient weight to the fact that the course of criminal conduct did not involve attempted or actual penetration.
6 The statement of facts outlined by the prosecutor, and accepted by counsel for the appellant, revealed that the appellant had committed a series of sexual offences against three young girls, the first of whom was 15 years of age at the time the offence was committed and the daughter of the appellant; the second of whom was aged between 4 and 10 years and the grandchild of the appellant; and the third of whom was aged between 5 and 7 years and also a grandchild of the appellant. The offence the subject of count 1 occurred when the appellant was 40 years of age; the offences in relation to the second complainant, which occurred over a five to six year period, were when the appellant was between 52 and 58 years of age and the offences against the third complainant which occurred over
(Page 6)
- a five to seven year period were when the appellant was aged between 56 and 58 years.
7 The learned trial Judge summarised the facts in relation to the various offences as constituting five counts of fondling and three counts of fondling and masturbating in the presence of one of the complainants; one count of fondling a complainant and having her rub his penis; one count of looking at one of the complainant's genitalia and masturbating himself; and one count of simply looking at one of the complainant's genitalia. The seriousness of the offences was said by the learned trial Judge to lie in the fact that each of the complainants was a very young person, the first being 15 years of age at the time of the offence committed and the other two being of very young and tender age. His Honour pointed out that the courts needed to protect children and to deter others in the community from engaging in the type of conduct in question and the sentence was therefore one which had to reflect the community's abhorrence of the crimes with an element of deterrence to others who might be inclined to take sexual advantage of children. His Honour also stressed that the appellant had taken advantage of the vulnerability of each of the children and had abused the responsibility and trust which had been placed in him in relation to those children. The fact that the offences had occurred over a prolonged period of time and by way of a persistent pattern of conduct also influenced the trial Judge in considering the offences to be "of a gravely serious kind". Account was taken by the learned trial Judge of the appellant's early plea of guilty, and of his remorse and condition of depressive disorder and it was for all these reasons that a discount of 37.5 per cent was applied to the sentence which would otherwise have been imposed.
8 The submissions of counsel for the appellant rely upon the fact that there were no instances of penetration or attempted penetration of any of the complainants and no violence or aggression, physical force, coercion, threats or blackmail. It is then said that the appropriate sentence was determined in relation to "inappropriate precedents" and was therefore manifestly excessive. The cases referred to by the learned trial Judge were said to be inappropriate precedents for determining the sentence applicable to the applicant because in all cases except one, they involved charges of sexual penetration, not merely indecent assault and indecent dealing. Insofar as one of those cases (R v Dunstan (supra)) dealt with offences which fell short of penetration, it was said to be distinguishable because (inter alia) the offender had an extensive criminal record for similar offences spanning some 17 years; he represented a risk to the
(Page 7)
- community; had shown no remorse for his actions; and was likely to reoffend.
9 I do not read the learned trial Judge's sentencing comments as indicating that he relied upon the actual sentences imposed in the cases to which he referred. His Honour simply made reference to the fact that he had considered each of the cases mentioned, and in my view this he was clearly entitled to do. The cases in question and others, to which we have been referred on the appeal, are many and varied and deal with a very wide range of sexual misconduct. Numerous attempts have been made in the reported cases to rationalise the approach of this Court to cases of intra-family sexual assault, the most recent exercise in that regard being that of Anderson J in Woods v R (supra). There (at 354 - 359) his Honour reviewed ten cases, three of which (R v Podirsky (1989) 43 A Crim R 404, R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 and Jarvis v The Queen, unreported; CCA SCt of WA; Library No 930341; 14 June 1993, were considered to be in the worst category of cases and another three of which (Price v The Queen (1988) 33 A Crim R 359, R v Ginder (1987) 23 A Crim R 1 and Sullivan v The Queen, unreported; CCA SCt of WA; Library No 8626; 11 December 1990) were said to be at the other end of the scale. In relation to those latter three cases, sentences of 6 years, 3 and a half years, and 6 years were imposed respectively. In Price (supra) there was (inter alia) one count of digital penetration; in Ginder (supra) a count of sexual penetration in the form of cunnilingus and in Sullivan an instance where (inter alia) the child's mouth was forced onto the offender's penis for a short time. The complaint made by the appellant in the present case is that there were no instances of penetration, yet the starting point for the sentence was chosen as 8 years' imprisonment, which is contended to be disproportionate to the appellant's behaviour in the light of the cases to which I have referred.
10 However, it must be remembered that in Woods, Anderson J pointed out that there are many other reported cases which involve a variety of circumstances. The question before the Court in Woods was whether in the light of the 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. This the Court declined to do.
11 As was pointed out by Ipp J in De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996, it is unnecessary for
(Page 8)
- the Court to constantly attempt to repeat the exhaustive exercise undertaken by Anderson J in Woods. As Ipp J pointed out in that case, it is apparent from the cases cited by Anderson J that a series of sexual offences committed over a period of some years, involving digital penetration of the vagina and indecent assaults of various kinds on a single child under the age of 16 years by a person in a position of trust can lead to an overall sentence of between 6 and 8 years' imprisonment. His Honour added:
"Anderson J's exposition also demonstrates that where more than one child is involved as a victim, the totality principle may have only a marginal effect in reduction of the overall sentence, particularly where each victim is aware of the degrading and corrupting conduct being perpetrated upon the other. As is explained in Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 the sentence should be proportionate to the degree of criminality involved and the severity of a term of imprisonment increases exponentially as it increases in length. Where, however, more than one child is subjected to corrupting and degrading criminal behaviour by a person in a position of trust it may well be that the criminality of the conduct increases exponentially by the very fact that serious and long term harm has been caused to more than one child. Further, the corruption of one child and the emotional trauma suffered by her or him may be exacerbated by that child becoming aware that a sibling has been seduced into participating or required to participate in similar unlawful sexual conduct."
13 In Podirsky, Malcolm CJ (at 411) was at pains to point out that any "tariff" in relation to sexual offences remains "as elusive as ever". What was made clear by the Chief Justice in that case was that a single act of sexual assault under s 324D of the Code by penial penetration will bring a sentence of about 6 years' imprisonment, but where the relevant circumstances that the complainant is under the age of 16 years, a sentence of about 8 years is commonly imposed. In cases where there has been a series of offences of aggravated sexual assault involving a girl under the age of 16 years, his Honour considered there to be more room for variation, but pointed out that sentences within the range of 9 to 11 years are commonly imposed.
(Page 9)
14 These guidelines which have been articulated from time to time by the court are intended only to give a general indication of the range of appropriate sentences in cases of sexual assault involving intra-family and other cases of sexual assault. In most of the cases referred to by Anderson J in Woods, there was an incident or incidents of sexual penetration of one form or another. In Podirsky, the Chief Justice indicated the likely range of sentence in cases in which there were incidents of sexual penetration either alone or combined with other sexual assaults. His Honour also referred to the case of Hinkley, unreported; CCA SCt of WA; Library No 7746; 21 July 1989, which was a case involving unlawful and indecent dealing/inciting a child to unlawfully and indecently deal, they being numerous offences over a period of years. An effective sentence of 6 years was there approved as an indication of the likely sentence to be imposed in such cases.
15 It seems to me that the presence or absence of what is often only an isolated case of penetration, and even then penetration in one or more different forms, cannot be said to be the determinative factor in the sentences which have been imposed in most of the cases which have been reviewed. The present case, involving as it did numerous counts of indecent dealing with a child under the age of 16 years (combined with one count of unlawful and indecent assault) was, in my view, properly categorised by the learned trial Judge as an extremely grave case, and one which called for a sentence of imprisonment which would act as a deterrent and, at the same time, express the abhorrence of the community in relation to such crimes. In my view, it could not be said that a range of 7 to 9 years' imprisonment for the combination of offences committed by this appellant was beyond the range appropriate for the case. A starting point of 8 years was, in my view, entirely within the learned trial Judge's discretion, and a discount of 37.5 per cent to account for the guilty pleas, remorse and depressive condition was, in my view, quite generous. As Anderson J pointed out in Trescuri v R (supra) at [29]):
"The plain fact of the matter is that good antecedents, contrition, the taking of steps towards rehabilitation, the fact that the offending may have been contributed to by abuse of alcohol and drugs and matters of that kind cannot be weighty mitigatory factors in a case of prolonged sexual molestation by a mature adult of children entrusted to his care."
16 Given the relationship which the appellant held with the three complainants in the present case, his age and their respective ages, and the prolonged course of sexual misconduct, an effective sentence of 5 years'
(Page 10)
imprisonment could not possibly, in my view, be considered to be an excessive disposition of this case. I would therefore refuse leave to appeal.
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