Do v The State of Western Australia
[2013] WASCA 218
•20 SEPTEMBER 2013
DO -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 218
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 218 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:250/2012 | 6 JUNE 2013 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 20/09/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Total effective sentence of 10 years' imprisonment set aside Total effective sentence of 8 years' imprisonment imposed | ||
| B | |||
| PDF Version |
| Parties: | DO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Appellant found guilty after trial of four counts sexual penetration (digital), 16 counts of indecent dealing and four counts of indecent recording of child under 13 Parent-helper at sons' school Victims between 6 and 12 years of age Two counts of indecent dealing with child of friend Total effective sentence of 10 years' imprisonment set aside Sentence of 8 years' imprisonment imposed |
Legislation: | Nil |
Case References: | Asplin v The State of Western Australia [2013] WASCA 72 CJF v The State of Western Australia [2012] WASCA 69 EPD v The State of Western Australia [2011] WASCA 264 GGM v The State of Western Australia [No 2] [2011] WASCA 259 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 JKL v The State of Western Australia [2012] WASCA 215 MMC v The State of Western Australia [2012] WASCA 187 Pendleton v The Queen [2002] WASCA 4 RFS v The State of Western Australia [2012] WASCA 58 RMS v The State of Western Australia [2010] WASCA 76 Roffey v The State of Western Australia [2007] WASCA 246 Smit v The State of Western Australia [2011] WASCA 124 The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 The State of Western Australia v Prince [2011] WASCA 22 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DO -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 218 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
File No : IND 1467 of 2011
Catchwords:
Criminal law - Sentencing - Appellant found guilty after trial of four counts sexual penetration (digital), 16 counts of indecent dealing and four counts of indecent recording of child under 13 - Parent-helper at sons' school - Victims between 6 and 12 years of age - Two counts of indecent dealing with child of friend - Total effective sentence of 10 years' imprisonment set aside - Sentence of 8 years' imprisonment imposed
Legislation:
Nil
Result:
Appeal allowed
Total effective sentence of 10 years' imprisonment set aside
Total effective sentence of 8 years' imprisonment imposed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr R G Wilson
Solicitors:
Appellant : LMB Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Asplin v The State of Western Australia [2013] WASCA 72
CJF v The State of Western Australia [2012] WASCA 69
EPD v The State of Western Australia [2011] WASCA 264
GGM v The State of Western Australia [No 2] [2011] WASCA 259
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
JKL v The State of Western Australia [2012] WASCA 215
MMC v The State of Western Australia [2012] WASCA 187
Pendleton v The Queen [2002] WASCA 4
RFS v The State of Western Australia [2012] WASCA 58
RMS v The State of Western Australia [2010] WASCA 76
Roffey v The State of Western Australia [2007] WASCA 246
Smit v The State of Western Australia [2011] WASCA 124
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Prince [2011] WASCA 22
1 BUSS JA: I agree with Newnes JA.
2 NEWNES JA: The appellant was found guilty after trial in the District Court on four counts of sexually penetrating a child under the age of 13, contrary to s 320(2) of the Criminal Code, and 16 counts of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. In addition, the appellant pleaded guilty to four offences relating to indecent recordings, contrary to s 320(6) of the Criminal Code, and possession of child exploitation material, contrary to s 220 of the Criminal Code (indictment 1467 of 2011).
3 The appellant also pleaded guilty to two further counts of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code, on a separate indictment (indictment 747 of 2012).
4 On 15 August 2012, the appellant was sentenced to a total effective term of 10 years' imprisonment for all of the offences. The appellant appeals against that sentence on the ground that it infringed the first limb of the totality principle.
5 The appeal notice and an amended appeal notice were both filed out of time, the latter, filed on 3 December 2012, being some three months out of time. Leave to appeal was granted by Mazza JA on 24 November 2012, but the appellant's application for an extension of time to appeal was referred to the hearing of the appeal.
Background
Indictment 1467 of 2011
Counts 1 to 13, 15 to 21 (convicted after trial)
6 The appellant assisted from time to time as a parent helper at his children's school. He had two sons attending the school at the time of the offending. The offending occurred while the appellant was acting as a parent helper. On four occasions the appellant put his hand down a boy's shorts and penetrated the anus of the boy with his finger and on sixteen other occasions he put his hand down a boy's shorts and indecently touched the boy on the penis or the bottom. The offending involved a total of seven boys, between six and nine years of age and occurred over a period of approximately three years. Eleven of the offences occurred in the classroom, seven occurred outside the classroom (one on the school oval), and two occurred at an aquatic centre where the school was conducting swimming lessons.
Counts 22 to 25 (plea of guilty)
7 Between October 2008 and February 2011, the appellant took 53 indecent photographs of boys, aged between six and 12 years of age, using a mobile phone. The photographs were taken in the male changing room at an aquatic centre while the appellant was assisting teachers with swimming lessons organised by the school. The images were taken when the boys were wholly or partly naked while getting changed and focussed on their genitals and buttocks (count 22).
8 The appellant took a further 19 indecent photographs in the same circumstances between 14 February 2011 and 18 February 2011, using a different mobile phone. The images were of boys aged between eight and 12 years of age, again focussing on their genitals and buttocks (count 23).
9 The appellant's offending came to light when a student saw the appellant surreptitiously taking such photographs and reported it to a teacher.
10 When the appellant was arrested in March 2011, a search of a thumb drive in his possession revealed 1,938 images of child exploitation material of boys aged between six and 14 years. That material fell into four of the categories identified by this court in Smit v The State of Western Australia [2011] WASCA 124. It consisted of 1,680 images in 'category 1', that is, depicting erotic posing with no sexual activity; 208 in 'category 2', sexual activity between children or solo masturbation by a child; one in 'category 3', non-penetrative sexual activity between an adult and a child; and 49 in 'category 4', penetrative sexual activity between children and adults (count 24).
11 A search of the appellant's computer revealed two video images of child exploitation material and three still images. The video images and two of the still images depicted boys aged between 12 and 16 years, and the other still image depicted a boy aged between six and eight years of age (count 25).
Indictment 747 of 2012 (plea of guilty)
12 The complainant was a six year old boy. The appellant was a family friend, having known the complainant's father for about 18 years. In December 2011, the appellant resumed contact with the complainant's father and started socialising with the family. Sometimes he would sleep at their house if he had drunk too much alcohol to drive.
13 The appellant slept at their house on Friday, 4 May 2012. During the early hours of the morning he went to the complainant’s bedroom, picked him up from his bed and carried him to the appellant's own bed. The appellant lay the complainant down on the bed, removed his pyjama pants and lay next to him. The appellant then patted the complainant's naked buttocks and flicked the complainant's penis with his fingers (counts 1 and 2). The complainant told the police that this had occurred on three previous occasions, and that the appellant had told him not to tell anyone about it.
14 The offences were committed while the appellant was on bail for the offences on indictment 1467 of 2011.
Sentencing remarks
15 In relation to the offences on the first indictment, the sentencing judge noted that as a parent helper the appellant had been in a position of trust and some authority within the school environment. He was also the father of school friends of the victims. The offending had occurred over a period of several years and his Honour found that it had involved grooming boys by trying to normalise the behaviour to make them think it was acceptable. His Honour said it was evident that the boys did not like what the appellant did to them, believing it to be wrong or being uncomfortable with it.
16 The sentencing judge observed that the nature of the offending on the second indictment was similar to the other offending. In this instance, the offending had occurred while the appellant was staying overnight as a friend of the boy's father. The boy was very young and had also regarded the appellant as a friend. The appellant had breached their trust in him. His Honour found that some limited remorse was indicated by the early plea of guilty.
17 His Honour had before him a pre-sentence report, a psychiatric report and a psychological report. He observed that the appellant had admitted to the author of each report that he had a sexual attraction to young male children and to child pornography, but had denied the offences for which he had been convicted after trial. His Honour noted that the reports revealed that the appellant lacked insight into his offending and was at a moderate to high risk of reoffending.
18 In relation to the appellant's personal circumstances, the sentencing judge noted that the appellant was 36 years of age at the time of sentencing. He had three young sons and was separated from his wife. He had a previous conviction in Queensland in 2004 for possession of child pornography.
19 His Honour concluded that there were no mitigating factors in relation to the offences on indictment 1467 of 2011, except the plea of guilty to four of the offences on that indictment. While it was a mitigating factor that the appellant had pleaded guilty to the offences on indictment 747 of 2012, on the other hand it was an aggravating factor that those offences were committed while the appellant was on bail for the offences on indictment 1467 of 2011.
20 His Honour sentenced the appellant as follows:
Indictment 1467 of 2011
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21 The total effective sentence on all counts was therefore 10 years' imprisonment. The appellant was made eligible for parole.
Ground of appeal
22 The sole ground of appeal was that the total effective sentence infringed the first limb of the totality principle. The appellant did not challenge the individual sentences imposed by the sentencing judge.
The disposition of the appeal
23 The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia[2007] WASCA 246 [24]. A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error: JKL v The State of Western Australia[2012] WASCA 215[58].
24 As this court has made clear, there is no tariff for sexual offences involving children because of the great variety that is possible in the circumstances of the offending and the offender: The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3]; RMS v The State of Western Australia [2010] WASCA 76 [24]. The sentence to be imposed in any case must depend upon the particular facts and circumstances of the case. However, while bearing in mind the limitations necessarily involved in doing so, regard is to be had to sentences customarily imposed for offending of that nature in an endeavour to achieve broad consistency in sentencing: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53]; The State of Western Australia v Prince [2011] WASCA 22 [19].
25 The offending in the present case was serious. The appellant has acknowledged that he has a sexual interest in male children. He nevertheless undertook the role of parent helper at his children's school, placing himself in a position where he would have access to young male children and where he would necessarily be relied upon by teachers and parents to act in an appropriate way. He entirely betrayed that responsibility. The offending was not simply opportunistic or of an isolated nature. As the sentencing judge found, the appellant used his position in a predatory way and groomed children by attempting to normalise his offending conduct. The offending involved victims who were very young, some as young as six years of age, and the appellant persisted in it over a period of some three years until he was detected. On the second indictment, the appellant took advantage of his position as an overnight guest in a friend's house to offend against the friend's young child, a child who had also regarded the appellant as a friend. As mentioned previously, that offending occurred while the appellant was on bail for the earlier offending.
26 The appellant has a previous conviction for possession of child pornography. He has no real insight into his offending and has been assessed as being at a moderate to high risk of reoffending. There is little by way of mitigation, apart from the appellant's pleas of guilty to four of the offences on indictment 1467 of 2011 and to the two offences on indictment 747 of 2012, but the latter offending is aggravated by its occurrence while the appellant was on bail for the earlier offending.
27 We were referred to a number of other cases involving sexual offending against children and I have considered those cases. I have also had regard to some other cases. It is unnecessary to canvass them all. It is sufficient to refer to the following.
28 In Pendleton v The Queen [2002] WASCA 4, the offender, a pre-primary school teacher, pleaded guilty to 130 counts of child sex offences committed over a period of five years while the applicant taught at three different schools. The offences involved six counts of possessing child pornography, one count of showing offensive material to a child under the age of 13 years, 20 counts of indecent dealing with a child under the age of 13, 18 counts of procuring a child under the age of 13 to do an indecent act, nine counts of sexual penetration of a child under the age of 13 (digital penetration), and 76 counts of indecently recording a child under the age of 13. The offender also pleaded guilty on a s 32 notice to having in his possession 37 pairs of young girls' knickers reasonably suspected of having been stolen or unlawfully obtained. There were 12 victims of the sexual offences, all between four and five years of age at the time of the offences. The applicant was sentenced to a total effective sentence of 12 years’ imprisonment (equivalent to eight years' imprisonment in post-transitional terms) without parole, along with an additional indefinite sentence of imprisonment. An appeal against the indefinite sentence and the refusal to make an order for parole was upheld. The offender did not appeal against the term of imprisonment, a sentence which the Court of Criminal Appeal described as 'appropriate'.
29 As this court has observed, most recently in Asplin vThe State of Western Australia [2013] WASCA 72 [54], there has been a firming up of sentences in relation to offences of this nature since that time. However, whilst the offender in Pendleton (unlike the appellant) had the mitigation of pleas of guilty to all the offences, it is evident that the offending in Pendleton, although it bears some similarity to the present case, was a good deal more serious.
30 In EPD vThe State of Western Australia [2011] WASCA 264, the offender was a primary school teacher. He was convicted after trial of 13 counts of indecently dealing with a child under the age of 13 years and sentenced to a total effective sentence of five years' imprisonment. Six of the convictions were set aside on appeal. The remaining offences involved two boys who were pupils of the appellant. The offences occurred between January 2007 and April 2009. The offender groomed the victims by giving them special attention. The offending involved rubbing the bottoms of the boys under their shorts. The offender exhibited no victim empathy or remorse but was found to be at minimal risk of reoffending. The total effective sentence of five years' imprisonment, imposed in respect of the 13 offences, was set aside and on the seven offences in respect of which the appeal against his conviction had failed the offender was sentenced to a total effective sentence of two years and four months' imprisonment with eligibility for parole.
31 In GGM v The State of Western Australia [No 2] [2011] WASCA 259, the appellant was convicted after trial of five counts of sexual penetration of a child under the age of 13 years (involving cunnilingus and digital penetration). The offences were committed over a period of five years against two sisters and were representative of a course of conduct over that time. The appellant was a close friend of the complainants' father and a frequent visitor to their home. The complainants lived with their father and were particularly vulnerable because of their father's severe problem with alcohol. The appellant took advantage of the situation to abuse the girls. The appellant had previously been convicted of two offences of indecent dealing with a child under the age of 16 years. The appellant was not remorseful and had no insight into his offending. An application for leave to appeal against a total effective sentence of 7 years' imprisonment was refused.
32 In CJF v The State of Western Australia [2012] WASCA 69, the appellant was convicted after trial of two counts of indecently dealing with, and four counts of sexually penetrating, a girl under the age of 16 years whom he knew to be his de facto child. The sexual penetration offences involved penile and digital penetration. The six counts on the indictment were representative of ongoing sexual abuse for a period of some three to four years which commenced when the complainant was 9 years old. The appellant used threats and physical violence against the complainant, was in ‘extreme denial’ about the abuse and was at a significant risk of engaging in future sexual violence. An appeal against a total effective sentence of 14 years' imprisonment was upheld and a term of 12 years' imprisonment imposed. The offending in that case was clearly much more serious than in the present case.
33 In RFS v The State of Western Australia [2012] WASCA 58, the offender pleaded guilty to 27 counts of sexual offending against children, involving two counts of indecent dealing with a child under 14, six counts of sexual penetration of a child under 13, seven counts of indecent dealing with a child under 13, three counts of sexual penetration of a child over 13 and under 16, six counts of indecent dealing with a child over 13 and under 16 and three counts of indecent assault. The sexual penetration was in each case digital penetration. There were six complainants, aged between 7 and 16 years. Most of the complainants were friends of the appellant's children and one was employed by the appellant in his kiosk. The offender showed genuine remorse, co-operated with police and was assessed as having a very low risk of reoffending. On appeal, a total effective sentence of 9 years and 6 months’ imprisonment was set aside and a sentence 7 years and 6 months' imprisonment imposed.
34 In MMC v The State of Western Australia [2012] WASCA 187, the offender pleaded guilty to 16 child sex offences. The offences included five counts of unlawful carnal knowledge of a girl under the age of 13 years, the offences having occurred when the appellant was aged 14 and the victim, the appellant's half-sister, was aged 11. A further 11 offences occurred while the appellant was in his late 30s and the victims, his three step-daughters, were aged between 7 and 12. The latter offending involved nine counts of sexual penetration of a child under the age of 13 years, one count of indecent dealing with a child under the age of 13 years, and one count of attempted sexual penetration of a child under the age of 13 years. The offences included both penile and digital penetration. The appellant was found to have a profound lack of empathy or remorse, other than reflected by his guilty plea. He was found to be grooming his three step-daughters for future sexual offending. An application for an extension of time to appeal against a total effective sentence of 11 years' imprisonment was dismissed. Whilst the offender in MMC, unlike the appellant, pleaded guilty to all of the offences, it is apparent that the offending in MMC was much more serious than in the present case.
35 The offending in this case clearly called for a substantial term of immediate imprisonment. However, the nature of the offending, while serious, was not of the most serious kind of sexual offending against children. Most of the offending involved 'touching', not sexual penetration (four of the 26 counts involved sexual penetration), and the sexual penetration offences (none of which involved penile penetration) involved one complainant rather than multiple complainants. Having regard to sentences customarily imposed for offending of the nature in this case, I consider that the total effective sentence of 10 years' imprisonment was disproportionate to the overall criminality involved in all the offences. I would allow the appeal.
36 It is then necessary for the appellant to be resentenced. This court has the material necessary to do so.
37 There was no challenge to the individual sentences imposed by the sentencing judge and I would not interfere with them. But having regard to the matters I have canvassed above, I would sentence the appellant to a total effective term of eight years' imprisonment. To that end, I would set aside the orders that the sentences of six months' imprisonment on count 6 and 18 months' imprisonment on count 9 on indictment 1467 of 2011 be served cumulatively and order that they be served concurrently with the sentence on count 1. The appellant would remain eligible for parole.
Conclusion
38 I would:
1. grant an extension of time to appeal to 3 December 2012;
2. allow the appeal;
3. on indictment 1467 of 2011, set aside the orders for cumulation on counts 6 and 9 made by the sentencing judge;
4. order that the sentence of six months' imprisonment on count 6 and the sentence of 18 months' imprisonment on count 9 be served concurrently with the sentence on count 1.
39 MAZZA JA: I agree with Newnes JA.
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Criminal Liability
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Sentencing
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