Eko v The State of Western Australia
[2020] WASCA 88
•8 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EKO -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 88
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 5 MARCH 2020
DELIVERED : 8 JUNE 2020
FILE NO/S: CACR 129 of 2019
BETWEEN: EKO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 554 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on her pleas of guilty of 44 counts of child sex offending - Two complainants - Appellant a teacher - Complainants under the appellant's care, supervision or authority - Total effective sentence of 7 years 6 months' imprisonment - Totality principle
Legislation:
Criminal Code (WA), s 321(2), s 321(3), s 321(4), s 321(7), s 321(8), s 322(2), s 322(3), s 322(4)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Ms K J Farley SC |
| Respondent | : | Ms L E Christian SC |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
D v The State of Western Australia [2009] WASCA 155
Deering v The State of Western Australia [2007] WASCA 212
Downie v The State of Western Australia [2013] WASCA 244
Giglia v The State of Western Australia [2010] WASCA 9
JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124
KWJW v The State of Western Australia [2010] WASCA 29
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Moore v The State of Western Australia [2019] WASCA 35
Murphy v The State of Western Australia [2013] WASCA 178
Poulton v The State of Western Australia [2008] WASCA 97
Roffey v The State of Western Australia [2007] WASCA 246
JUDGMENT OF THE COURT:
This is an appeal against sentence.
The appellant was charged on indictment with 44 counts which alleged that she had committed various sexual offences against two different female children. These reasons will refer to the complainants as DW and NA. Counts 1 to 30 related to DW and counts 31 to 44 related to NA.
On 26 July 2019, the appellant was convicted, on her pleas of guilty, of all of the 44 counts.
Fifteen counts alleged that on various dates between 1 September 2015 and 28 September 2016, the appellant indecently dealt with DW, a child of or over the age of 13 years and under the age of 16 years, and then under the appellant's care, supervision or authority, contrary to s 321(4) read with s 321(8)(b) of the Criminal Code (WA) (the Code).
Nine counts alleged that on various dates between 1 September 2015 and 26 January 2016, the appellant procured DW, a child of or over the age of 13 years and under the age of 16 years, to engage in sexual behaviour, and then under the appellant's care, supervision or authority, contrary to s 321(3) read with s 321(7)(b) of the Code.
Six counts alleged that on various dates between 1 September 2015 and 28 September 2016, the appellant sexually penetrated DW, a child of or over the age of 13 years and under the age of 16 years, and then under the appellant's care, supervision or authority, contrary to s 321(2) read with s 321(7)(b) of the Code.
Six counts alleged that on various dates between 1 June 2016 and 17 December 2017, the appellant indecently dealt with NA, a child of or over the age of 16 years, and then under the appellant's care, supervision or authority, contrary to s 322(4) of the Code.
Seven counts alleged that on various dates between 1 June 2016 and 17 December 2017, the appellant sexually penetrated NA, a child of or over the age of 16 years, and then under the appellant's care, supervision or authority, contrary to s 322(2) of the Code.
One count alleged that on a date unknown between 1 June 2017 and 17 December 2017, the appellant procured NA, a child of or over the age of 16 years, and then under the appellant's care, supervision or authority, to engage in sexual behaviour, contrary to s 322(3) of the Code.
The maximum penalty for:
(a)each offence contrary to s 321(4) read with s 321(8)(b) of the Code (being fifteen counts) was 10 years' imprisonment;
(b)each offence contrary to s 321(3) read with s 321(7)(b) of the Code (being nine counts) was 20 years' imprisonment;
(c)each offence contrary to s 321(2) read with s 321(7)(b) of the Code (being six counts) was 20 years' imprisonment;
(d)each offence contrary to s 322(4) of the Code (being six counts) was 5 years' imprisonment;
(e)each offence contrary to s 322(2) of the Code (being seven counts) was 10 years' imprisonment; and
(f)the offence contrary to s 322(3) of the Code (being one count) was 10 years' imprisonment.
On 2 August 2019, Birmingham DCJ sentenced the appellant as follows:
(a)count 1: 6 months' immediate imprisonment
(b)count 2: 9 months' immediate imprisonment
(c)count 3: 6 months' immediate imprisonment
(d)count 4: 12 months' immediate imprisonment
(e)count 5: 6 months' immediate imprisonment
(f)count 6: 12 months' immediate imprisonment
(g)count 7: 2 years' immediate imprisonment
(h)count 8: 2 years' immediate imprisonment
(i)count 9: 2 years 6 months' immediate imprisonment
(j)count 10: 6 months' immediate imprisonment
(k)count 11: 6 months' immediate imprisonment
(l)count 12: 12 months' immediate imprisonment
(m)count 13: 6 months' immediate imprisonment
(n)count 14: 18 months' immediate imprisonment
(o)count 15: 18 months' immediate imprisonment
(p)count 16: 2 years' immediate imprisonment
(q)count 17: 2 years 6 months' immediate imprisonment
(r)count 18: 12 months' immediate imprisonment
(s)count 19: 2 years' immediate imprisonment
(t)count 20: 18 months' immediate imprisonment
(u)count 21: 2 years' immediate imprisonment
(v)count 22: 2 years' immediate imprisonment
(w)count 23: 12 months' immediate imprisonment
(x)count 24: 2 years' immediate imprisonment
(y)count 25: 2 years 6 months' immediate imprisonment
(z)count 26: 12 months' immediate imprisonment
(aa)count 27: 12 months' immediate imprisonment
(bb)count 28: 15 months' immediate imprisonment
(cc)count 29: 2 years 6 months' immediate imprisonment
(dd)count 30: 6 months' immediate imprisonment
(ee)count 31: 6 months' immediate imprisonment
(ff)count 32: 6 months' immediate imprisonment
(gg)count 33: 12 months' immediate imprisonment
(hh)count 34: 15 months' immediate imprisonment
(ii)count 35: 2 years' immediate imprisonment
(jj)count 36: 2 years' immediate imprisonment
(kk)count 37: 2 years 6 months' immediate imprisonment
(ll)count 38: 2 years' immediate imprisonment
(mm)count 39: 2 years 6 months' immediate imprisonment
(nn)count 40: 6 months' immediate imprisonment
(oo)count 41: 6 months' immediate imprisonment
(pp)count 42: 18 months' immediate imprisonment
(qq)count 43: 2 years' immediate imprisonment
(rr)count 44: 18 months' immediate imprisonment.
His Honour ordered that the individual sentence for count 9 be the head sentence; the individual sentences for counts 9, 17 and 29 be served cumulatively; and the individual sentences for the other counts be served concurrently with each other and concurrently with the individual sentence for count 9. The total effective sentence was therefore 7 years 6 months' imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 26 July 2019.
The sole ground of appeal alleges, in essence, that the total effective sentence infringed the first limb of the totality principle.
On 1 November 2019, Buss P referred the appellant's application for leave to appeal on that ground to the hearing of the appeal.
We would grant leave to appeal. However, the ground of appeal has not been made out. The appeal must be dismissed.
The facts and circumstances of the offending
The facts of the offending are not in dispute on appeal and were not in dispute before the sentencing judge. The prosecutor stated the following facts (ts 12 - 20), which were not challenged by the appellant and were incorporated by reference in his Honour's remarks (ts 71).
At all relevant times, the appellant was a teacher at a secondary school in a Perth suburb, specialising in the arts.
Between 1 September 2015 and 17 December 2017, the appellant engaged in a sexual relationship with two victims ‑ DW and NA. Both were students at the school where the appellant was teaching. DW was aged 13 or 14 years at the time of the offending. NA was aged 17 years at the time of the offending. The appellant was then aged 25 or 26 years.
The appellant's relationship with DW began on 1 September 2015 and ended on 28 September 2016. The appellant engaged in the sexual activity with DW the subject of counts 1 ‑ 30 on six separate occasions.
Prior to the first incident, DW sought advice and comfort from the appellant as a trusted teacher she could confide in with respect to difficulties that she was experiencing at school. Throughout their relationship, the appellant bought DW gifts, including a necklace for her fourteenth birthday and a toy bunny for Easter. The appellant also gave DW a pet cat.
The first incident occurred when DW was in the kiln room of the school's art building ‑ a secluded area. At the conclusion of the class, DW remained to talk to the appellant and to help her clean up and put boxes away. DW carried two boxes into the kiln room. The appellant followed her. Inside the kiln room the appellant hugged and kissed DW on the lips for a long time. It was the first kiss DW had experienced from anyone. Later that evening, the appellant sent DW a message saying 'I hope that didn't freak you out'.
The second incident also occurred in the kiln room of the school's art building. The appellant pushed DW against a wall and kissed her on the lips. The appellant then bit DW on the neck, raised one of her knees and wrapped it around DW's waist and groin area and pressed her vagina against DW (count 1). The appellant then lifted DW's skirt and DW squeezed the appellant on the bottom.
The third incident occurred when DW agreed to attend the appellant's home following an exchange of messages on Facebook and Snapchat. The appellant asked DW to visit her during the school holidays. DW asked her mother to drop her across the park from the appellant's house, so as to pretend that DW was going to a friend's house. DW knocked on the appellant's door. Once inside, the appellant pushed DW against the door and kissed DW. The appellant and DW sat in the lounge. The appellant then led DW into the appellant's bedroom. The appellant and DW sat on the bed. They talked for a while before the appellant laid DW on her back, and sat on top of DW. The appellant asked DW to remove the appellant's bra. The appellant then placed DW's hands on the appellant's breasts (count 2). The appellant kissed DW's lips and whispered 'fuck me' (count 3). DW had not previously engaged in any similar behaviour. The appellant laid next to DW and grabbed her hand and placed it on the appellant's vagina (count 4). The appellant kissed DW while her hand was on the appellant's vagina (count 5). The appellant showed DW how to rub the appellant's clitoris by holding DW's hand and guiding her fingers in a circular motion (count 6). The appellant then laid beside DW with her head on DW's shoulder. The appellant put her hand down DW's pants and rubbed DW's clitoris (count 7). The appellant then guided DW's hand so that DW inserted her fingers into the appellant's vagina (count 8) as the appellant also put her fingers into DW's vagina and moved them repeatedly in and out (count 9). DW made an excuse to check her telephone to stop what was happening. DW discovered that she had a number of missed calls from her mother who was at the park waiting for her. The appellant kissed DW on the lips and DW left shortly afterwards.
The fourth incident occurred between 1 September 2015 and 25 January 2016. DW told her parents that she would stay with a friend for the night. Instead, DW walked around the corner from her house where DW met the appellant and got into the appellant's car. The appellant touched DW on the thigh and kissed DW (count 10). The appellant and DW went to the appellant's home and started watching a movie. The appellant and DW then went to the appellant's bedroom. Once inside the bedroom, the appellant pushed DW against the bedroom door and kissed DW. The appellant removed her shirt and pants and laid down on the bed. DW leant over the appellant and they kissed. DW kissed the appellant's neck and breasts (count 11). DW then put her hand into the appellant's underwear and, at the appellant's request, rubbed the appellant's clitoris (count 12). The appellant bit, sucked and kissed DW's neck, creating a 'hickey' (count 13). DW then inserted her finger into the appellant's vagina and repeatedly moved it in and out (count 14), before again rubbing the appellant's clitoris (count 15). DW inserted two of her fingers into the appellant's vagina and moved them in and out repeatedly (count 16). The appellant and DW then returned to the lounge room and finished watching the movie.
Later in the evening, the appellant and DW returned to the appellant's bedroom and started kissing again on the appellant's bed. The appellant sat on DW's waist, kissed DW and removed DW's pants. The appellant then rubbed DW's clitoris and inserted her fingers into DW's vagina (count 17). The appellant removed her own clothing and DW kissed the appellant from her stomach to her inner thigh (count 18). DW licked the appellant's clitoris with her tongue and put her fingers into the appellant's vagina (count 19). DW stayed the night at the appellant's house. The following day they went out for lunch and to the cinema. They attempted to see an age restricted movie, but DW was not permitted to purchase a ticket by cinema staff. The appellant and DW returned to the appellant's vehicle where the appellant comforted DW by kissing her a number of times on the lips. They then went to a different cinema where the appellant purchased two tickets to deceive the cinema staff as to DW's age. The appellant then dropped DW near her home. To deceive her parents, the appellant asked DW to pretend she was puffing as though she had walked from her friend's house.
The fifth incident occurred on Australia Day in 2016. DW attended the appellant's house at the appellant's invitation. After dinner, the appellant and DW were lying on the couch. The appellant jumped on top of DW and said, 'I want to try something new'. The appellant put her legs over DW's shoulders and put her vagina into DW's face (count 20). At the appellant's request, DW licked the appellant's clitoris whilst the appellant's vagina was in DW's face (count 21). At the appellant's request, DW inserted her fingers into the appellant's vagina and moved them in and out (count 22). The appellant removed DW's pants and underwear and kissed DW up and down her body (count 23). The appellant licked DW's clitoris (count 24) and then licked DW's vagina whilst inserting her fingers in and out of DW's vagina (count 25).
The sixth incident occurred between 27 January 2016 and 28 September 2016, after DW had played a football game. That evening, DW attended the appellant's house at the appellant's invitation. The appellant and DW laid on the appellant's bed. DW put her hand on the appellant's stomach and the appellant moved DW's hand towards the appellant's vagina. DW rubbed the appellant's vagina over the top of the appellant's underwear (count 26). The appellant then rubbed DW's vagina over her clothing (count 27) before removing her shorts and continuing to perform the same act (count 28). The appellant moved DW's underwear to the side and inserted her fingers into DW's vagina, moving them in and out repeatedly (count 29). DW then kissed the appellant on the lips and the appellant said to her 'I fucking well love you' (count 30). DW stopped what she was doing and told the appellant she was going to sleep. DW apologised to the appellant because she knew that the appellant was in an adult relationship and DW did not want the appellant to have any feelings of regret from cheating.
The appellant's relationship with NA began on 1 June 2016 and ended on 17 December 2017. NA was not officially enrolled in the appellant's class, but NA would often not attend her own classes and would sit in the appellant's class. The appellant would supervise NA. The appellant struck up a friendship with NA. NA would confide in the appellant about her problems and the appellant would give her advice. The appellant began sending NA messages, which included photographs of a sexual nature. The appellant engaged in the sexual activity with NA the subject of counts 31 ‑ 44 on two separate occasions.
The first incident occurred when NA attended the appellant's house at the appellant's invitation. The appellant and NA sat on a couch watching Netflix and smoking cannabis supplied by the appellant. The appellant put her hand on NA's leg and they began kissing each other on the lips (count 31). The appellant and NA then moved to the appellant's bedroom where they both undressed. The appellant ran her hands over NA's naked body (count 32). They got into the appellant's bed and the appellant felt NA's breasts with her hands (count 33). Whilst naked in bed together, the appellant rubbed the outside of NA's vagina with her hand (count 34) and inserted her fingers into NA's vagina (count 35). The appellant licked NA's vagina (count 36) before licking NA's vagina whilst inserting her fingers in and out of NA's vagina (count 37).
Later that night, the appellant and NA were lying naked together in the appellant's bed. The appellant licked NA's vagina (count 38) and then licked NA's vagina while inserting her fingers in and out of NA's vagina (count 39). The appellant and NA then drove to the foreshore. They parked and talked whilst sitting in the car. The appellant kissed NA on the lips (count 40).
The second incident occurred when NA attended the appellant's house at the appellant's invitation. The appellant and NA went into the appellant's bedroom and removed each other's clothes. The appellant touched NA's breasts and body (count 41). They lay on the bed and the appellant licked NA's vagina (count 42) before licking NA's vagina whilst inserting her fingers in and out of NA's vagina (count 43). At the appellant's request, NA inserted her fingers into the appellant's vagina (count 44). NA stayed the night at the appellant's house and left the next morning.
The cessation of the offending
On 24 March 2016, DW's mother raised suspicions with representatives of the school that there was an inappropriate relationship between the appellant and DW. The school principal arranged a meeting with the appellant and DW. During the meeting both the appellant and DW lied to the school principal about the nature of their relationship. Prior to the meeting the appellant had encouraged DW not to say anything about their true relationship. The appellant told DW that if she did reveal the true nature of their relationship the appellant would kill herself.
On 20 July 2018, the appellant was arrested at the school. She participated in an electronically recorded interview with the police about the allegations which DW had by that time made. During the interview the appellant denied having a sexual relationship with DW. She claimed that DW was a 'troubled girl' who had fabricated the allegations. The appellant was released without charge.
On 1 August 2018, after the police had made further investigations, the appellant was arrested and charged with the offences in question.
The appellant's personal circumstances, the expert reports and sentencing judge's sentencing remarks
As we have mentioned, the appellant was aged 25 or 26 at the time of the offending. She did not have a prior criminal record.
The information before the sentencing judge included a report dated 3 May 2019 from Ms Tina Marley, a clinical psychologist, a report dated 8 July 2019 from Dr Holim Won, a psychiatrist, a pre-sentence report dated 13 May 2019, several character references and an undated letter from the appellant to the sentencing judge.
In the psychological report, Ms Marley said:
(a)The appellant presented as a self‑reflective and open woman.
(b)The appellant admitted committing the offences. She impressed as remorseful and guilty about her sexual offending. Her reflections suggested that she viewed herself as equal to her victims in terms of power. As such, she did not view the sexual relationships she had with DW and NA as abusive.
(c)The appellant had 'few risk factors predictive of future sexual offending' because her observed shame and humiliation relating to her offending behaviour was likely be protective in her future interactions with teenagers. Also, as the appellant can no longer work as a teacher, opportunities to reoffend will be restricted.
In the psychiatric report, Dr Won reported that the appellant has a complex background which has involved multiple instances of suicidal thoughts and past suicide attempts. The appellant meets the diagnostic criteria of a Major Depressive Disorder. The appellant's mental illness was 'reactive to [the charged offences]'. She had no previous psychiatric history.
The appellant told the author of the pre-sentence report that her two victims were harmed by her behaviours and that she 'should have known better'.
The sentencing judge noted in his sentencing remarks that:
(a)The appellant's offending was 'serious'. She breached a relationship of trust. She initiated the sexual behaviour. She was in a position of authority and power as DW's teacher. There was evidence of grooming and manipulative behaviour. DW was vulnerable due to her limited capacity to resist. The appellant deliberately exploited her position for her own advantage and sexual gratification. This was compounded by the fact that the appellant had offended against not one but two students for whom she was responsible (ts 69 ‑ 74).
(b)An aggravating factor was that the offending occurred not only between teacher and student, but also on school grounds, in an environment where students 'ought reasonably to have felt safe' (ts 70).
(c)The appellant was aware of the victims' vulnerability, having undertaken courses by the Department of Education on accountable and ethical decision-making and child protection professional learning programs (ts 74).
(d)When suspicion of offending arose in the community, the appellant had no regard to the effect it may have on DW. The appellant used 'threatening behaviour' to secure DW's silence. The appellant lied to police to place the responsibility for suspicion on DW (ts 68 ‑ 70).
(e)His Honour placed 'little weight' on the appellant's prior good character because the nature of the offences meant that people did not know the truth about her offending until she was charged. Further, his Honour noted that the appellant's positive qualities must take 'second place' because the appellant held a role, by force of her occupation, to take care of and safeguard the welfare of young and vulnerable students (ts 76).
(f)NA's victim impact statement demonstrated the harm which the appellant had caused to NA's mental health. NA could not handle the 'guilt and pain' associated with the offending. Consequently, she had developed anorexia and attempted suicide (ts 71 ‑ 72).
(g)His Honour said he did not need a victim impact statement from DW to comprehend the extent to which DW is probably in the same, if not a worse, position than NA (ts 72).
(h)The offending had impacted upon the appellant in a profound way. The appellant was remorseful for her offending (ts 73).
(i)His Honour afforded the appellant a discount of 25% on each individual head sentence he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act 1995 (WA), on account of her pleas of guilty.
The appellant's submissions
Counsel for the appellant submitted that the total effective sentence of 7 years 6 months' imprisonment was disproportionate to the criminality of the appellant's overall offending having regard to a number of factors.
First, the appellant entered pleas of guilty at the first reasonable opportunity. Secondly, the sentencing judge accepted that the appellant was remorseful for her offending conduct. The appellant's remorse was supported by Dr Won who said in his report that the appellant was 'suicidal in the context of deep shame associated with her offending behaviour'. Thirdly, although his Honour did not expressly state that the appellant had demonstrated victim empathy, his Honour did accept that the appellant was remorseful not merely for what she had done, but also for the 'impact [that she has] had upon the lives of [the victims] and the impact that [she will] continue to have on them'. Fourthly, the appellant had no prior criminal history and was relatively young at the time of the offending. Fifthly, Ms Marley assessed that the appellant had few risk factors predictive of future sexual offending.
Although counsel for the appellant had been unable to identify any 'truly [comprable] cases', it was submitted that this court's decision in D v The State of Western of Australia[1] supported the appellant's contention that the total effective sentence of 7 years 6 months' imprisonment infringed the first limb of the totality principle. Counsel also referred to JAF v The State of Western Australia. [2]
[1] D v The State of Western Australia [2009] WASCA 155.
[2] JAF v The State of Western Australia [2008] WASCA 231; (2008) 190 A Crim R 124.
Counsel for the appellant argued that the total effective sentence was more than was necessary to satisfy all of the relevant sentencing objectives, including punishment, retribution and deterrence.
The merits of the ground of appeal
The appellant does not challenge any of the individual sentences. Also, she does not challenge any of the sentencing judge's findings of fact or allege that his Honour made any other express error.
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 offences. See Roffey v The State of Western Australia.[3] 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.[4]
[3] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[4] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that 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 that 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.
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[5]
[5] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).
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.[6]
[6] 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.[7]
[7] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
The maximum penalties for the offences committed by the appellant are set out at [10] above.
The criminal offences which Parliament has created in relation to sexual activity with children have as their object the protection of children from people who would sexually exploit them and also the protection of children from themselves, regardless of the level of their maturity and sexual experience. See Deering v The State of Western Australia.[8] As McLure JA (Steytler P agreeing) noted in Poulton v The State of Western Australia,[9] the seriousness of sexual offending against children is increased if the offender 'abuses a position or situation that enables that person to influence, persuade, pressure, force, manipulate or otherwise take advantage of a child for the purpose of facilitating the commission of the offence'. Sexual offending against children causes harm to the victims. The harm may be prolonged and even life‑long. Teachers occupy a position of trust and authority with respect to children. The community relies upon teachers for the proper education, guidance and instruction of children. A teacher's position of trust and authority renders children vulnerable to the teacher's influence if the teacher abuses his or her position by gaining the particular trust of a child with a view to engaging in sexual relations with the child. The duty of the courts is to protect children from teachers who may abuse or contemplate abusing their position of trust and authority in relation to children in their care and for whom they are responsible. General deterrence is an important sentencing factor.
[8] Deering v The State of Western Australia [2007] WASCA 212 [17] (Wheeler JA; Owen & Miller JJA agreeing).
[9] Poulton v The State of Western Australia [2008] WASCA 97 [4].
We have examined a number of appeals against sentence including those cited by counsel for the appellant and counsel for the State. The cases we have considered include JAF; D; KWJW v The State of Western Australia;[10] Murphy v The State of Western Australia;[11] and Downie v The State of Western Australia.[12] It is unnecessary to reproduce the facts and circumstances of all of those cases or the sentencing outcomes. There are some comparable features between some of the cases and the present case and there are also some distinguishing features. We will, however, refer in detail to JAF and D which, as we have mentioned, were expressly relied upon by counsel for the appellant.
[10] KWJW v The State of Western Australia [2010] WASCA 29.
[11] Murphy v The State of Western Australia [2013] WASCA 178.
[12] Downie v The State of Western Australia [2013] WASCA 244.
In JAF, the appellant was convicted, on his pleas of guilty, of 12 counts of indecently dealing with a child aged between 13 and 16 years and 21 counts of sexually penetrating a child aged between 13 and 16 years. The appellant received a total effective sentence of 5 years 8 months' imprisonment. His appeal against sentence was allowed and a total effective sentence of 4 years' immediate imprisonment was substituted. The circumstances of the offending were that the victim was a school girl in a country town who was aged between 14 and 15 years when the offences were committed. At the material time the appellant was aged 34 years. He was married with two small children. The victim occasionally babysat the appellant's children. The victim was a student at a school where the appellant was a teacher, although he was not her class teacher. The appellant's position of authority was the general authority of a teacher at a school at which the victim was a student. The appellant and the victim liked each other and an emotional relationship of some kind developed between them. The offending occurred over a period of about four months. The victim regarded the relationship as one of boyfriend and girlfriend, and it appears that, on occasions, the appellant referred to it in that way. When it became apparent that the relationship was being investigated, the appellant advised the victim to tell the truth. He made prompt admissions and entered early pleas of guilty. The appellant embarked upon the relationship at a time when he was depressed and vulnerable, after having been mistakenly diagnosed with testicular cancer and having one of his testicles surgically removed. The offending was out of character.
In D, the appellant was convicted, on his pleas of guilty, of 7 counts of sexual penetration of a child (the first victim) under his care, supervision or authority. The first victim was aged 16 years 9 months when the offending commenced and was aged 17 years when the last three offences were committed. The appellant was also convicted, on his plea of guilty, of one count of persistent sexual conduct with a child (the second victim) under the age of 16 years. There were about eight separate occasions over a period of nearly five months in which sexual conduct between the appellant and the second victim occurred. The offending began when the second victim was aged 15 years 7 months. The appellant received a total effective sentence in relation to all of the offending against both victims of 7 years 6 months' imprisonment. His appeal against sentence was allowed and a total effective sentence of 5 years' immediate imprisonment was substituted. The appellant, who was aged 31 years when the offending began, was a teacher at the local high school attended by the victims. Both victims were willing participants in the sexual activity. The appellant pleaded guilty prior to trial, had excellent antecedents and had made a significant contribution to his local and school community. He received numerous letters of support from members of those communities.
There are a number of points of distinction between the present case, on the one hand, and JAF and D, on the other.
In JAF and D there were no findings that the offenders had engaged in manipulative behaviour towards the victims or that the offenders had groomed the victims. By contrast, in the present case, the appellant established relationships of trust and support with the victims which she then abused for her own sexual gratification.
In JAF and D the offenders did not procure the victims to tell lies or deceive others when suspicions arose in relation to the offending. Indeed, in JAF, the offender advised the victim to tell the truth. By contrast, in the present case, the appellant threatened to commit suicide if DW revealed the true nature of their relationship. The appellant encouraged DW to lie to the school principal in the knowledge that DW had previously deceived her parents. Later, the appellant sought to impugn DW's admissions by asserting to the police that DW had fabricated the allegations. The appellant continued to offend against DW after being confronted by the school principal.
In the present case, the victim, DW, was younger than the victims in D. Also, DW had no prior sexual experience of any kind.
In the present case, there were two victims whereas JAF involved one victim.
The seriousness of the appellant's overall offending, in the present case, is apparent from a number of factors. First, the victims were under the appellant's care, supervision or authority at the time of the offending. Secondly, the appellant offended against two victims. Thirdly, the offending involved a gross breach of the trust and responsibility vested in the appellant as a teacher. Fourthly, the appellant initiated the offending. There was evidence of grooming and manipulative behaviour, especially in relation to DW. Fifthly, some of the offending occurred on school grounds and in an environment where students ought reasonably to feel safe. Sixthly, the appellant knew that what she was doing was wrong. The offending did not involve an isolated lapse of judgment. It involved ongoing behaviour over a lengthy period against both DW and NA. The 44 counts in the indictment were representative. Seventhly, the appellant knew that DW was deceiving her parents. The appellant lied to the school principal about the nature of her relationship with DW. The appellant procured DW to lie to the school principal. The appellant sought to emotionally blackmail DW by threatening to commit suicide if DW told the truth. The appellant disparaged DW's character when the appellant was confronted by police about the allegations. Eighthly, the victims were vulnerable and the emotional impact upon them of the offending and its aftermath has been significant.
There were, of course, a number of mitigating factors. First, the appellant pleaded guilty at the first reasonable opportunity. Secondly, the appellant was remorseful both for what she had done and for the impact her actions have had and will continue to have upon the victims. Thirdly, the appellant had no prior criminal record. Fourthly, the appellant appears to be at a low risk of future sexual offending, in part because of the shame and humiliation she has suffered in relation to the current offences and in part because she can no longer work as a teacher and therefore opportunities to reoffend will be restricted. Fifthly, at the time of sentencing the appellant was suffering from a Major Depressive Disorder. However, this mental illness was a direct consequence of the offending being discovered and the appellant's subsequent interaction with the criminal justice system.
In our opinion, the total effective sentence of 7 years 6 months' imprisonment did not infringe the first limb of the totality principle. A term of imprisonment of that length was necessary in order properly to reflect the serious nature of the appellant's offending, viewed as a whole, and to give effect to the important sentencing considerations of appropriate punishment and general deterrence, having regard to the need to protect vulnerable children. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the maximum penalties, the seriousness of the overall offending, the vulnerability of the victims and the matters of mitigation. The total effective sentence is not unreasonable or plainly unjust.
The sole ground of appeal fails.
Conclusion
We would grant leave to appeal. However, the ground of appeal has not been made out. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss8 JUNE 2020
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