ERA v The State of Western Australia
[2013] WASCA 163
•19 JULY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ERA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 163
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 7 MAY 2013
DELIVERED : 19 JULY 2013
FILE NO/S: CACR 255 of 2012
CACR 256 of 2012
BETWEEN: ERA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 1068 of 2011
Catchwords:
Criminal law - Appeal against conviction - Prejudicial remarks by the prosecutor in her opening address - Longman direction - No miscarriage of justice
Criminal law - Appeal against sentence - Multiple sexual offences against numerous young children - Historical offending by the appellant against his nieces - Contemporaneous offending by the appellant against his grand-daughters - Total effective sentence of 16 years' imprisonment - Appellant aged 64 when sentenced - Totality principle
Legislation:
Criminal Code (WA), s 183 (repealed), s 185 (repealed), s 329(2)
Sentencing Act 1995 (WA), s 6(2)(b), s 24, s 25, s 26
Result:
CACR 255 of 2012
Leave to appeal refused
Appeal dismissed
CACR 256 of 2012
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr J A Davies & Mr G M Rodgers
Respondent: No appearance
Solicitors:
Appellant: Gary Rodgers Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
B v The Queen [2002] WASCA 236
Braham v The Queen (1994) 116 FLR 38
CJF v The State of Western Australia [2012] WASCA 69
GHS v The State of Western Australia [2006] WASCA 42
GMS v The State of Western Australia [2009] WASCA 107
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
KMB v The State of Western Australia [2010] WASCA 212
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
LSC v The Queen [2003] WASCA 303
M v The State of Western Australia [2006] WASCA 256
MMC v The State of Western Australia [2012] WASCA 187
MPD v The State of Western Australia [2008] WASCA 57
Neumann v The State of Western Australia [2013] WASCA 70
Osborne v The State of Western Australia [2013] WASCA 106
PDS v The State of Western Australia [2006] WASCA 20
Porter v The Queen [2008] NSWCCA 145
PP v The State of Western Australia [2004] WASCA 144
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Webb [1971] VR 147
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
Smith v The State of Western Australia [2010] WASCA 176
SPB v The State of Western Australia [2012] WASCA 136
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v FJG [2012] WASCA 206
Truscott v The State of Western Australia [2007] WASCA 62
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341
Table of Contents
McLure P's reasons.................................................................................................................. 5
Buss JA's reasons...................................................................................................................... 5
The duration of the offending and the relationship between the appellant and the complainants
The delay in the appellant being informed of the complaints
Overview of the appellant's offending against L
Overview of the appellant's offending against J
Overview of the appellant's offending against N
Overview of the appellant's offending against C
Appeal against conviction: proposed grounds of appeal
Appeal against conviction: the appellant's submissions on ground 1
Appeal against conviction: the merits of ground 1
Appeal against conviction: the appellant's submissions on ground 2
Appeal against conviction: the merits of ground 2
Appeal against conviction: conclusion
Appeal against sentence: proposed grounds of appeal
Appeal against sentence: the information before the trial judge and his sentencing remarks
Appeal against sentence: the appellant's submissions
Appeal against sentence: the merits of the grounds of appeal
Appeal against sentence: conclusion
Mazza JA's reasons
McLURE P: I agree with Buss JA.
BUSS JA: The appellant has applied for leave to appeal against conviction and sentence.
He was charged on indictment with 29 counts of sexual offending against children.
The offences were alleged to have been committed against four girls, whom I will refer to as L, J, N and C.
The appellant pleaded not guilty to all of the counts. He was tried in the District Court before O'Neal DCJ and a jury. The jury returned verdicts of guilty on 21 of the counts. The appellant was acquitted on the other counts.
On 19 October 2012, his Honour imposed a total effective sentence of 16 years' imprisonment, backdated to 10 August 2012. A parole eligibility order was made.
The duration of the offending and the relationship between the appellant and the complainants
L and J are the appellant's nieces. The offending against them occurred in 1974 and 1975.
N and C are the appellant's grand‑daughters. The offending against them occurred between 2005 and 2008.
The delay in the appellant being informed of the complaints
The appellant was not informed of the substance of the complaints until on or about 14 September 2010, when he participated in a video‑recorded interview with the police.
Overview of the appellant's offending against L
The appellant's conviction on counts 1 and 3 relates to L. Each count alleged that the appellant had unlawfully and indecently dealt with L, then a child under the age of 14 years, contrary to s 183 (repealed) of the Criminal Code (WA) (the Code).
The offending occurred between 1 December 1974 and 30 June 1975 at a house in rural Western Australia. Count 1 alleged that the appellant rubbed L's vagina with his hand and count 3 alleged that he rubbed his penis against her vagina.
Overview of the appellant's offending against J
The appellant's conviction on counts 4 ‑ 8 and 10 ‑ 13 relates to J. Each count, except count 13, alleged that the appellant had unlawfully and indecently dealt with J, then a child under the age of 14 years, contrary to s 183 (repealed) of the Code. Count 13 alleged that the appellant had unlawful carnal knowledge of J, then a child under the age of 13 years, contrary to s 185 (repealed) of the Code.
The offending occurred between 1 December 1974 and 30 June 1975 at the appellant's place of work in rural Western Australia. Count 4 alleged that the appellant rubbed J's vagina with his hand. Count 5 alleged that, on the same occasion as count 4, the appellant used J's hand to masturbate his penis. Count 6 alleged that the appellant touched J's vagina with his fingers. Count 7 alleged that, on the same occasion as count 6, the appellant rubbed his penis against J's vagina until he ejaculated. Count 8 alleged that the appellant used J's hand to masturbate his penis. Count 10 alleged that, on the same occasion as count 8, the appellant rubbed his penis against J's vagina until he ejaculated. Count 11 alleged that the appellant rubbed his penis against J's vagina until he ejaculated. Count 12 alleged that the appellant used J's hand to masturbate his penis. Count 13 alleged that the appellant penetrated J's vagina with his penis.
Overview of the appellant's offending against N
The appellant's conviction on counts 16 ‑ 19 relates to N.
The offending occurred between 1 January 2005 and 31 December 2007 at rural locations near a Western Australian country town. Each count alleged that on separate unknown dates during the period of the offending the appellant sexually penetrated N, a child who he then knew to be a lineal relative, by penetrating her vagina with his penis, contrary to s 329(2) of the Code.
Overview of the appellant's offending against C
The appellant's conviction on counts 21 ‑ 26 relates to C.
The offending occurred between 1 January 2006 and 31 December 2008 in rural Western Australia. Count 21 alleged that the appellant sexually penetrated C, a child who he then knew to be his lineal relative, by inserting his finger into her vagina. Count 22 alleged that on the same date and at the same place as in count 21, the appellant sexually penetrated C by inserting a vibrating sex toy into her vagina. Count 23 alleged that on the same date and at the same place as count 21, the appellant sexually penetrated C by inserting his penis into her vagina. Count 24 alleged that on another date unknown during the period of the offending, the appellant sexually penetrated C, a child who he then knew to be his lineal relative, by inserting his finger into her vagina. Count 25 alleged that on the same date and at the same place as count 24, the appellant sexually penetrated C by inserting a vibrating sex toy into her vagina. Count 26 alleged that on the same date and at the same place as count 24, the appellant sexually penetrated C by inserting his penis into her vagina.
All of the offending against C was contrary to s 329(2) of the Code.
Appeal against conviction: proposed grounds of appeal
The appellant relies on two proposed grounds in his appeal against conviction.
Ground 1 alleges that the trial judge erred in law, and there was a miscarriage of justice, in that he failed to warn the jury to disregard irrelevant or unfairly prejudicial remarks by the prosecutor in her opening address.
Ground 2 alleges that his Honour erred in law, and there was a miscarriage of justice, when he failed to give the jury an adequate Longman direction (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79).
Appeal against conviction: the appellant's submissions on ground 1
During her opening address, the prosecutor said in relation to the complainants:
Now, these women and these young teenagers have one thing in common, ladies and gentlemen, and that is that the accused took something from them. They will testify that when the accused used them to pleasure himself he took away their innocence and at least in the case of [L] and [J], his nieces who are now middle‑aged women, he scarred them for life (ts 99).
Counsel for the appellant submitted that:
(a)The prosecutor's remarks implied that the damage suffered by the complainants was a relevant matter to be considered by the jury in determining the facts of the case.
(b)The remarks gave rise to a reasonable apprehension that the jury 'may have followed a path of impermissible reasoning, the verdicts [being] influenced at least to some extent by commonly felt revulsion'.
(c)The steps taken by the trial judge to deal with the remarks were inadequate.
Counsel argued that his Honour, in dealing with the remarks, failed specifically to refer to the remarks and direct the jury that the prosecutor was wrong to have made them and that her remarks must be ignored (appeal ts 5 ‑ 6).
It was contended that, in the circumstances, a miscarriage of justice had occurred.
Appeal against conviction: the merits of ground 1
On 30 July 2012, the trial judge addressed the jury after it was empanelled. Between 11.28 am and 11.43 am he told the jury, amongst other things:
(a)The appellant was presumed to be innocent of the charges unless the State proved the charges beyond reasonable doubt (ts 87).
(b)The jury was bound to decide the case solely on the evidence that was presented in court (ts 88).
(c)What the prosecutor or defence counsel say is not itself evidence (ts 88).
(d)It was important that the jury did not 'jump to conclusions or make a final decision on any evidence until [it had] heard all of the evidence and until [it had] heard the final addresses of counsel and [his Honour's] summing up of the case' (ts 93). Until that stage the jury must 'keep an open mind' (ts 93).
The prosecutor made the impugned remarks on 30 July 2012 at 12.08 pm. Her opening address was interrupted by the luncheon adjournment.
Before the court adjourned, his Honour, on his own initiative, gave the jury the following instructions at 12.56 pm:
I'm going to go out on a limb here and guess that when many of you found out the kind of trial that you were going to be sitting on, your heart sank. And I can entirely understand why that might be, because allegations of this kind are very, very troubling. They're very troubling emotionally, they're troubling on so many levels.
It would be natural on hearing of the fact of an allegation of this kind to feel real sympathy for the people who were thought to be victims of such offences and to feel a real degree of prejudice against someone who might be charged with such matters. But of course the offences are allegations at this point. And as difficult as it is to have to deal with issues of this kind, it's extremely important that you bring to your job as much detachment as you can.
You're here to determine a case on the evidence that's established. You know, when all of the evidence is in, without prejudice to anyone, without sympathy for anyone. And I'll be reminding [you] about that at the conclusion of the trial (ts 113).
At 1.03 pm, the trial judge explained to the prosecutor and defence counsel, in the absence of the jury, why he had given those instructions:
O'NEAL DCJ: I took the unusual step mentioning prejudice and sympathy ‑ - ‑
AUSTIN, MS: Yes.
O'NEAL DCJ: ‑ - ‑ and I did that because there was something that you said in the course of your address ‑ - ‑
AUSTIN, MS: Yes, your Honour.
O'NEAL DCJ: ‑ - ‑ about a complainant being scarred for life.
AUSTIN, MS: Yes, your Honour.
O'NEAL DCJ: I have to say, with respect, that's really quite inappropriate ‑ - ‑
AUSTIN, MS: Yes
O'NEAL DCJ: ‑ - ‑ and it's really irrelevant to the job that the jury have to do and I would be very, very grateful if you were careful to avoid such things.
AUSTIN, MS: I apologise (ts 115 ‑ 116).
After all of the evidence had been received and the prosecutor and defence counsel had made their closing addresses, his Honour reminded the jury, in his summing up, that it was necessary for it to determine the charges against the appellant on the evidence and that it had to assess the evidence dispassionately (ts 646). He added that the jury should not decide the case 'on prejudice or on sympathy' and it should not be concerned about the consequences of its verdict (ts 646).
Defence counsel did not, at any stage, request a redirection or an additional direction on the remarks in question, and he did not apply for the jury to be discharged.
The trial judge recognised, correctly, that the prosecutor's remarks were improper. They should not have been made. His Honour's response to the making of the remarks was appropriate. If his Honour had specifically referred to the remarks there was a risk that he may have inadvertently strengthened their impact. His instructions to the jury were adequate to guard against any prejudice to the appellant and to ensure that he received a fair trial. This is the only conclusion reasonably open when the impugned remarks are evaluated in the context of all of the directions given by his Honour to the jury in the course of the trial. It is of some significance that defence counsel did not request a redirection or an additional direction and did not apply for the jury to be discharged. There is no reasonable possibility that the remarks occasioned a miscarriage of justice.
Ground 1 is without merit.
Appeal against conviction: the appellant's submissions on ground 2
Counsel for the appellant submitted that the trial judge failed in his Longman direction to warn the jury of:
(a)the real and actual prejudice suffered by the appellant because of the passage of time since the alleged offences occurred;
(b)the specific difficulties and forensic disadvantage which arose as a result of the delay in the complainants making a complaint;
(c)the appellant's lost chance effectively to test the complainants' evidence; and
(d)the appellant's lost chance adequately to marshal a defence by locating witnesses, documents or photographs which might have been of assistance to his defence.
At the hearing, counsel distilled his argument in relation to ground 2:
The problem is this: the jury was told that he can't adequately test the evidence after this Longman delay. But what does that mean in the mind of the jury? It's an expression which would perhaps be well understood by a lawyer not trained in criminal practice, but nonetheless to a juror what does it mean by 'testing'? Could it mean forensic testing, could it mean in the age of DNA, looking at that? It's a confusing statement if it's not then dressed in the circumstances we would argue of the capacity to look for photographs and the capacity to look for old diaries, old letters (appeal ts 3).
According to counsel, the alleged deficiencies in his Honour's Longman direction gave rise to a miscarriage of justice.
Appeal against conviction: the merits of ground 2
The trial judge directed the jury, in his summing up, about the delay between the occurrence of the alleged offences and the appellant being informed of the complaints, as follows:
(a)A central issue in the case was whether, given the very long delay in L and J making complaint, and the delay in N and C making complaint, the jury was satisfied that their evidence was truthful and reliable in relation to the elements of the alleged offences (ts 640).
(b)It was necessary for the jury to assess the evidence of each complainant with 'special care' (ts 643).
(c)Each complainant was the only witness against the appellant about the happening of the particular events involving that complainant as alleged in the indictment (ts 643).
(d)The matters described by L and C happened 'a very long time ago'. They were not reported to the police for 35 years. No‑one else had given evidence corroborating what each of them told the jury (ts 643 ‑ 644).
(e)The jury had to be satisfied beyond reasonable doubt about the truthfulness of a complainant's evidence before it could convict the appellant of the offences alleged in respect of that complainant. The crucial nature of each complainant's evidence, and the seriousness of the allegations made by each complainant, made it necessary for the jury to scrutinise the evidence of each complainant with 'special care' (ts 644).
(f)The jury should take carefully into account that the events in respect of counts 1 ‑ 14, that is the counts involving L and J, were alleged to have happened about 37 years ago. The earliest of the events alleged to have involved N occurred in 2006 and the last in about 2007. The earliest of the events said to involve C occurred in 2006 and the last in 2009 or perhaps early 2010 (ts 644).
(g)No complaint was made at the time of the alleged offences and there was no corroboration, other than from each complainant, that the events in question happened (ts 644).
(h)L and J were young girls at the time of the alleged offending against them. N and C were 'still quite young' at the time of the alleged offending against them. Human memory is fallible. The longer the delay in such matters coming forward the more opportunity there is for error, especially in relation to events occurring in childhood (ts 644).
(i)The longer a person believes something to have happened the more convinced he or she is that it in fact happened, even if the person is mistaken in his or her recollection. The jury needed to bear this point in mind, especially with respect to the evidence of L and J. Human memory is fallible and even honest witnesses can be wrong in their recollection (ts 644).
(j)As a result of the delay, the evidence of the complainants could not be tested adequately. Further, as a result of the delay, the appellant had lost the opportunity to bring forward matters of defence and to test the evidence of the complainants, especially in relation to the allegations made by L and J (ts 644).
(k)Any work records which may have indicated whether the appellant had opportunities in 1975 to be alone with L or J, when they were required to bring him lunch on a Saturday, had disappeared decades ago. Other people who were employed at the appellant's workplace at that time could not sensibly be asked what they remembered; for example, whether they were present at the appellant's workplace at any material time, even if, in fact, they were alive to be asked. No evidence could be gathered as to the layout of the shed or workshop at the appellant's place of work where some of the offences were said to have taken place (ts 645).
(l)Although the complaints by N and C were more recent, their complaints presented some similar difficulties (ts 645).
(m)The appellant had been put at a significant disadvantage in testing the evidence of the complainants and in being able to recollect what he may have been doing at the time of the alleged offences, and in being able to locate other witnesses who might have been able to say something about what he or a complainant was doing at the time of the alleged offences (ts 645).
(n)It is the experience of the courts that accused people in the situation of the appellant have difficulty where there has been a long delay between the occurrence of alleged offences and the accused people being informed of the complaints. It was particularly important, because of the long delay in respect of the complaints of N and C, the very long delay in respect of the complaints of L and J, and the lack of specificity about the time of the alleged offences, that the jury 'scrutinise each complainant's evidence with special care' (ts 645).
(o)The jury was at liberty to act upon the evidence of L or J and to convict the appellant if it was satisfied of the truth and accuracy of her evidence. However, it would be unsafe to convict the appellant on the uncorroborated evidence of L or J unless, having scrutinised her evidence with great care and having considered the circumstances relevant to that evidence to which his Honour had referred, and taking full account of his Honour's warning, it was satisfied beyond reasonable doubt as to its truth and accuracy (ts 645 ‑ 646).
(p)The jury was at liberty to act upon the evidence of N or C and to convict the appellant if, having scrutinised her evidence with great care, and having considered the circumstances relevant to the alleged offences, and having taken full account of his Honour's warning, the jury was satisfied beyond reasonable doubt as to its truth and accuracy (ts 646).
After his Honour completed his summing up, the following exchange occurred between his Honour and defence counsel, in the absence of the jury:
RODGERS, MR: … Just in relation to the Longman warning, your Honour I just think that it might have been lost in the whole charge in terms of ‑ it should have been stronger, should be more clearly put to the jury in sort of a clear and concise way, to say the ‑ you know, given the delay. Because I think the way it panned out is that it was lost in the rest of it ‑ in the rest of the charge.
O'NEAL DCJ: It was virtually the last thing that I told them
RODGERS, MR: Well, your Honour, I don't know ‑ I would say that it just wasn't clearly and concisely ‑ strongly put to them.
O'NEAL DCJ: All right. Well, tell me what you would have me do, and I'll make a note of it.
RODGERS, MR: Your Honour, if you can ‑ you can say what you've said; I don't disagree with what you said. But it just should be put more strongly and clearly to them, making a more ‑ ‑ ‑
O'NEAL DCJ: That's not helpful, Mr Rodgers.
RODGERS, MR: The tone ‑ in the tone, your Honour, rather than loses in the jumble of words that surround - not - I wouldn't say 'jumble', but in ‑ it just needs to be put to them in a stronger fashion.
O'NEAL DCJ: Well, what would you have me do, shout it?
RODGERS, MR: No, but you can say 'I need you to take special notice of this, and this point', that ‑ and then give them the warning.
O'NEAL DCJ: Well, I actually in fact effectively gave them two Longman warnings. Told them that they needed to scrutinise the evidence of the complainants with special care on at least three occasions. Told them that it would be unsafe for them to convict on the evidence of [J] and [L], unless they had done all of those things, having regard to the particular forensic difficulties that I mentioned.
And that even though the complaints of [N] and [C] were not of the same sort of vintage, they again, nonetheless, needed to scrutinise the evidence with special care, because of the forensic difficulties faced by [the appellant]. Now, I'm not sure I understand what it is that you'd like me to ‑ what else you'd like me to do.
RODGERS, MR: Then we'll leave it at that, your Honour (ts 649 ‑ 650).
During further discourse with his Honour on the Longman warning, defence counsel said:
(a)'Well then I'll leave it at that, your Honour' (ts 651).
(b)'Your Honour, look, I'll leave it there. I'm happy with that, I'm happy with the way you've described it' (ts 652).
(c)'No, look, your Honour … we can leave it there. That's fine, I'm happy with your directions' (ts 653).
In SPB v The State of Western Australia [2012] WASCA 136, I reviewed the circumstances in which a judge in a criminal trial is obliged to give a Longman warning to the jury, and the content of the warning. It is unnecessary to reproduce the review. See also Osborne v The State of Western Australia [2013] WASCA 106.
As I noted (McLure P & Mazza JA agreeing) in Osborne:
The Longman direction has not been reduced to a formulaic or ritual incantation, divorced from the facts and circumstances of the particular case. There is no requirement that, as a matter of law, a trial judge must, in each and every case, state specific examples of forensic disadvantage. Where it is necessary to give a Longman direction, the direction should be crafted to the facts and circumstances of the particular case, with the object of ensuring a fair trial and avoiding the perceptible risk of a miscarriage of justice. Some of the content of a direction in one case may not be required or appropriate in another case [47].
It is apparent from my summary of the trial judge's directions about the relevant delay that his Honour warned the jury, in substance, that:
(a)the appellant had suffered real and actual prejudice;
(b)this prejudice included the loss of the opportunity to bring forward matters of defence and the loss of the opportunity properly to test the allegations of the complainants; and
(c)in particular, the appellant had lost the opportunity to locate and call evidence from witnesses and the opportunity to retain or find documentary and other records that may have assisted his defence.
The jury would have understood that his Honour's directions about the appellant being unable adequately to test the evidence of the complainants related to the capacity of defence counsel to cross‑examine them on the truth and accuracy of their allegations by reference to the evidence of witnesses, and the contents of documentary and other records, which may have been available to the appellant, and assisted his case, if prompt complaints had been made and brought to the appellant's attention.
In my opinion, the Longman warning given by the trial judge in the present case was adequate to ensure a fair trial for the appellant and to avoid any perceptible risk of a miscarriage of justice. It is of some significance that defence counsel did not persist with his request for a redirection or an additional direction and, after debate with his Honour, said on more than one occasion that he was 'happy' with the Longman warning. There is no merit in any of the complaints made by counsel for the appellant.
Ground 2 is not reasonably arguable.
Appeal against conviction: conclusion
Neither ground 1 nor ground 2 has a reasonable prospect of success. Leave to appeal should be refused. The appeal against conviction must therefore be dismissed.
Appeal against sentence: proposed grounds of appeal
The appellant relies on two proposed grounds in his appeal against sentence.
Ground 1 alleges that the trial judge erred in law by imposing a total effective sentence of 16 years' imprisonment in that the sentence infringed the first limb of the totality principle because it was disproportionately severe.
Ground 2 alleges that his Honour erred in law by imposing a total effective sentence which infringed the second limb of the totality principle because it was a crushing sentence and destroyed any reasonable expectation by the appellant of a useful life after release.
Appeal against sentence: the information before the trial judge and his sentencing remarks
The trial judge recounted, in his sentencing remarks, the facts and circumstances of the offending and the appellant's personal circumstances and antecedents.
The appellant was born on 23 August 1948. He was aged 64 at the time of sentencing.
In 1974, the appellant was living in rural Western Australia with his then wife, G, and their children, H and A.
The appellant's sister‑in‑law, S, was married to his brother, R. In 1972, R abandoned S and their four children, who included the complainants L and J. In December 1974, S and her children moved to the town in which the appellant was living. They stayed with the appellant and his family for several months before they acquired their own accommodation in the town.
In 1974 and 1975, when the appellant committed the offences against L and J, L was aged 11 or 12, J was 8 and he was 26 or 27.
J was often distressed when the appellant assaulted her. His penile penetration of J's vagina sometimes caused her pain. On one occasion, when J told the appellant she was in pain and asked him to stop, he said, 'It'll go away in a minute'. He did not stop and continued to penetrate her until ejaculation (ts 701 ‑ 702). The appellant told J that what happened between them was their 'little secret' because no‑one would believe her (ts 700).
After the appellant offended against L, as alleged in counts 1 and 3, she told her mother about the incidents. The mother disbelieved her, calling her 'a liar and a dirty slut' (ts 699). At the time L was no older than 12.
About a year or two after the appellant had offended against J, as alleged in counts 4 ‑ 8 and 10 ‑ 13, she told her mother that the appellant had 'hurt [her] in ways that shouldn't have ever happened'. The mother responded that L and J were 'a pair of dirty liars' and they should get out of her sight because 'she didn't want to see [them]' (ts 702).
During the period of the appellant's offending against L and J, he had intimate relations with their mother on several occasions (ts 703).
In 1983 and 1984, the appellant committed incest with his daughter, A. She was 10 or 11 and he was 35 or 36. The incest involved numerous acts of penile/vaginal intercourse. On 5 May 1984, the appellant pleaded guilty in the District Court to one count of incest with A. He was sentenced to 5 years' imprisonment with a minimum term of 2 years 4 months.
At the appellant's trial on the counts involving L, J, N and C, he made a number of admissions, pursuant to s 32 of the Evidence Act 1906 (WA), in relation to his offending against A, namely:
(1) On 5 May 1984 [the appellant] pleaded guilty to one count of incest with his daughter [A].
(2) The accused had penile/vaginal sexual intercourse with his daughter on one occasion when she was 11 years old between 1 October 1983 and 30 November 1983.
(3) The accused also engaged in several other acts of penile/vaginal sexual intercourse with his daughter in the 12 months prior to the final act of sexual intercourse. The number of acts of sexual intercourse cannot be specified.
(4) The accused's daughter [A] was between the ages of about 10‑and‑a‑half and 11 years old when the sexual intercourse occurred.
(5) The sexual intercourse occurred during a period when the accused's daughter was sleeping in his bed and when the child's mother had left the marital relationship.
(6) Before the accused penetrated his daughter to perform sexual intercourse he rubbed cream on her vagina.
In the present case, the trial judge said that other material in the State brief indicated that the extent of the appellant's depravity, as revealed by those admissions, may have been considerably understated (ts 704).
Upon the appellant being released on parole in relation to the incest offence, his son, H, who was aged 15, returned from interstate to live with him. Within a year of his release, the appellant met his current wife, and in 1989 they were married.
After residing with the appellant for some time, the son travelled to different parts of rural Western Australia. He was employed in farming work. The son married and had three children, including the complainants N and C.
In 2003, the appellant's son and family moved to an area near the appellant. There was regular contact between the appellant and the appellant's son and family.
Between 2005 and 2008, when the appellant committed the offences against N and C, N was about 8 ‑ 11, C was about 7 ‑ 10 and the appellant was about 57 ‑ 60.
The trial judge said in relation to the appellant's offending against N and C:
From about 2006 you began to methodically abuse the trust of your son and his wife, your wife and your two granddaughters. With respect to both girls, as was apparent from their spontaneous remarks to the child witness interviewers, you so regularly sexually abused them it was sufficiently routine that neither girl appreciated for some time at least how depraved your conduct was.
No doubt that was the result of grooming from a very young age by rewards, including money and other things. It was apparent that both girls had reached a point where such conduct was unremarkable, only being occasionally memorable.
[N] when asked in the child witness interview how many times it had actually happened with her grandfather said:
I wouldn't be able to say, there's so many. Yeah, numerous, I wouldn't have an idea (ts 706).
On one occasion, C experienced a great deal of pain when the appellant penetrated her vagina with his penis. She began to cry. The appellant told her to stop crying and he continued with the assault.
The appellant counselled N not to reveal his misconduct to anyone. He told her that it was their 'secret'. When N was old enough to express opposition to the appellant, he responded on one occasion, 'I'll pay you more' (ts 708).
His Honour referred to regular urinary tract infections suffered by C. Defence counsel suggested, no doubt on the appellant's instructions, that these infections were attributable to C's poor personal hygiene. His Honour rejected that suggestion. He was satisfied beyond reasonable doubt, based in part on expert evidence, that C's urinary tract infections were attributable to the appellant's abuse of her with an unsanitary vibrating sex toy (ts 711).
After finding that there were other occasions, apart from those specified in the indictment, on which the appellant sexually abused N and C (ts 711), the trial judge said that although the appellant was not to be punished for these other incidents, their occurrence demonstrated that the counts on which he was convicted were not isolated events (ts 711).
His Honour received victim impact statements from each of the complainants.
J has sustained significant long‑term damage. She has difficulties in forming and maintaining relationships, especially with men, and she suffers from depression, insecurity and a lack of self‑esteem.
The appellant's offending against L was not as frequent or serious as his offending against J. Nevertheless, the appellant's abuse of L impacted significantly on her emotional health and education as a child. It has also diminished her capacity to form satisfactory relationships with other people. She has been unable to maintain a long‑term intimate relationship and has found it difficult to trust others.
N says that she has not felt like a 'normal person' since the offending. At the time of sentencing, N was 16. She has emotional difficulties including difficulties in forming friendships and trusting men. Her education has been adversely affected. She has been treated with medication for depression.
C's statement refers to her memories of the significant physical pain she experienced when the appellant abused her and her repeated urinary tract infections. She has a lack of trust in others and serious emotional problems. C said in her statement:
My life has been turned upside down. I have had no childhood. I'm supposed to be 14 years old but because of this I have to be sensible about it and take it like a 25‑year‑old. It is so hard to do that.
The information before the trial judge included a report dated 7 October 2012 from Dr SD Febbo, a consultant psychiatrist, and a pre‑sentence report dated 15 October 2012.
Dr Febbo interviewed the appellant at Hakea Prison. The appellant denied the offences and suggested that they had been fabricated in the context of a conflict with his daughter‑in‑law. The appellant also denied having a sexual interest in children. Dr Febbo was of the view that the appellant did not have a major psychiatric disorder before he was charged with these offences, but he did have significant pathological personality traits. However, after he was charged there was a marked deterioration in the appellant's mental state. According to Dr Febbo, the appellant continued to experience 'a scatter of depressive and anxiety symptoms in keeping with a major depressive episode'. The appellant's criminal history suggests the presence of sexual deviancy. Dr Febbo was of the view that the appellant is 'at considerable risk of reoffending'. He explained:
[The appellant] has a number of risk factors in relation to future sexual violence. I note the presence of chronicity in sexual violence, psychological coercion in sexual violence, problems resulting from child abuse, major mental illness, and extreme minimisation and denial of sexual violence, a history of alcohol related problems (a factor identified as significant in [the appellant's] previous offences) and sexual deviance. I also note the possible presence of problems with self-awareness, violent or suicidal ideation, and attitudes that support or condone sexual violence. (original emphasis)
The author of the pre‑sentence report noted that the appellant vehemently denied having committed any of the offences. He therefore accepted no responsibility for his actions and he did not express any remorse or victim empathy.
After outlining the facts and circumstances of the offending, and referring to the expert reports, his Honour said:
The facts that I've described demonstrate that you were prepared to single‑mindedly pursue your own sexual gratification without regard for your young victims, without regard for the pain caused to [J] and [C] or for the happiness and welfare of any of the girls. All of your victims were especially vulnerable given their age and your position of authority in the family. While there was no actual violence used against them, the differences in size and strength meant that any physical resistance that they did offer was easily overpowered. And that is a particular feature of your offending against your nieces.
You corrupted each of your victims and going by the victim impact statements, destroyed the childhoods of at least three of them. Your offending has caused two of them lifelong emotional problems and there must be real concern for the damage to your granddaughters. You are completely without remorse and at a considerable risk of reoffending (ts 716).
The trial judge said there was very limited mitigation. The appellant had a good work history. His age (64 at the time of sentencing) was of limited significance, but nevertheless a factor to be taken into account in the application of the totality principle.
His Honour concluded that the appellant's offending was not in the most serious category, but was nonetheless very serious. He based this conclusion on the aggravating factors, the nature of the offending, the number and ages of the complainants and the repeated and prolonged abuse, especially against the grand‑daughters, N and C (ts 716 ‑ 717).
After imposing individual sentences for each offence, his Honour addressed the issue of totality (ts 718). The total effective sentence of 16 years' imprisonment, with eligibility for parole, was backdated to 10 August 2012, being the date on which the appellant was taken into custody (ts 719).
Appeal against sentence: the appellant's submissions
Counsel for the appellant submitted that the total effective sentence was not a proper reflection of the appellant's overall criminality and, further, was crushing. The sentence was harsh when compared with the range of sentences imposed in other 'broadly similar' cases. It was argued that the disproportionately severe nature of the sentence was apparent when proper account was taken of:
(a)the 38‑year delay between the offending against L and J (in 1974 and 1975) and the date of sentencing (in 2012); and
(b)the appellant's age (64 years) and his reasonable life expectancy.
According to counsel, the total effective sentence was only a 'few years short of … a whole of life sentence' and effectively left the appellant with little, if any, expectation of useful life following release.
Appeal against sentence: the merits of the grounds of appeal
It is convenient to consider grounds 1 and 2 together.
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 or is yet to serve a term of imprisonment), viewed in their entirety, 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 second limb of the principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. These propositions are well-established by the case law.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 ‑ 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] ‑ [35] (Redlich JA, Neave JA agreeing).
However, whether and, if so, to what extent leniency should be given to an offender of advanced age, depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.
In Smith v The State of Western Australia [2010] WASCA 176, I reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. I noted (McLure P & Mazza J agreeing):
First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public [68].
At the relevant time, the maximum penalty for:
(a)counts 1, 3, 4 ‑ 8 and 10 ‑ 12, being unlawful and indecent dealing with a child under the age of 14 years, contrary to s 183 (repealed) of the Code, was 7 years' imprisonment;
(b)count 13, being unlawful carnal knowledge of a child under the age of 13 years, contrary to s 185 (repealed) of the Code, was life imprisonment with hard labour, with or without a whipping; and
(c)counts 16 ‑ 19 and 21 ‑ 26, being sexual penetration of a child known to be a lineal relative, contrary to s 329(2) of the Code, was 20 years' imprisonment.
The primary sentencing considerations for offences of the kind committed by the appellant are punishment of the offender and specific and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
By s 6(2)(b) of the Sentencing Act 1995 (WA), the seriousness of an offence must be determined by taking into account, amongst other things, the circumstances of the commission of the offence, including 'the vulnerability of any victim of the offence'.
At common law, a sentencing judge may take into account, in determining sentence, any detrimental, prejudicial or deleterious effect that may have been produced on the victim by the commission of the offence. See R v Webb [1971] VR 147, 151 (Winneke CJ, Pape & Lush JJ); Porter v The Queen [2008] NSWCCA 145 [54] (Johnson J, Bell JA & McCallum J agreeing). See also, in relation to victim impact statements, s 24 to s 26 of the Sentencing Act.
There is no tariff for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69] (Steytler P, McLure JA agreeing).
I have considered numerous cases with at least some features comparable to the appellant's offending. See, in particular, B v The Queen [2002] WASCA 236; LSC v The Queen [2003] WASCA 303; VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; PDS v The State of Western Australia [2006] WASCA 20; GHS v The State of Western Australia [2006] WASCA 42; M; Truscott v The State of Western Australia [2007] WASCA 62; MPD; GMS v The State of Western Australia [2009] WASCA 107; KMB v The State of Western Australia [2010] WASCA 212; CJF v The State of Western Australia [2012] WASCA 69; SWD v The State of Western Australia [2012] WASCA 76; MMC v The State of Western Australia [2012] WASCA 187; and The State of Western Australia v FJG [2012] WASCA 206. In each of those cases the offender received a total effective sentence of at least 10 years' imprisonment (in post‑transitional terms) for multiple child sex offences. The highest total effective sentences were imposed in GHS (14 years), KMB (14 years 6 months) and SWD (14 years). It is unnecessary to reproduce the relevant facts and circumstances or the particular sentences imposed in all of the cases I have mentioned. I will confine my review to GHS, KMB and SWD.
In GHS, the offender was convicted, after separate trials, of multiple sex offences against two of his stepdaughters. He was aged 56 when sentenced.
As to one stepdaughter, P, he was convicted of seven counts after a trial before Eaton DCJ and a jury in June 2004. The offences comprised one count of rape, two counts of aggravated sexual penetration, three counts of indecently dealing with a child under the age of 14 years and one count of inciting a child under the age of 14 years to indecently deal with him. Eaton DCJ imposed a total effective sentence of 8 years' imprisonment, with eligibility for parole. Five of the offences were committed on the same occasion during 1985, shortly after P's 12th birthday. They were the first offences of which she had a specific recollection. The other two offences were committed during March or April 1987. The seven offences were representative of a course of offending against P until she was 20 or 21.
As to the other stepdaughter, J, he was convicted of a further seven counts after a trial before Nisbet DCJ and a jury in July 2004. The offending included two counts of sexual penetration without consent. The offences were committed on five separate occasions commencing when J was aged 13 and ending when she was 21. The offending spanned the period between 1984 and 1992. Once again, these offences were representative of a sustained course of sexual abuse by the offender. Nisbet DCJ imposed a total effective sentence of 8 years' imprisonment, with eligibility for parole. His Honour ordered that this sentence be served cumulatively upon the sentence passed by Eaton DCJ. Hence, the aggregate sentence in respect of all of the offences against the stepdaughters was 16 years' imprisonment with eligibility for parole.
At the relevant time, the maximum penalty for rape was life imprisonment with or without a whipping, the maximum penalty for aggravated sexual penetration was 20 years' imprisonment, the maximum penalty for indecently dealing with a child under the age of 14 years or inciting a child under the age of 14 years to indecently deal with another was 14 years' imprisonment and the maximum penalty for sexual penetration without consent was 14 years' imprisonment.
On appeal by the offender, the offences were described as 'dreadfully serious' [119]. They blighted the lives of the complainants and did them enormous harm. The offender did not demonstrate any remorse. He was, however, otherwise of good character but, as Murray AJA noted, that matter carries little weight in cases of intra‑familial sex offences [120].
This court held that the aggregate term of 16 years' imprisonment was too severe. It allowed the appeal and substituted an aggregate term of 14 years.
In KMB, the offender was convicted after a trial on seven counts in an indictment which alleged the commission of various sexual offences against his stepdaughter.
Details of the offences, the maximum penalties and the individual sentences are as follows:
Offence
Maximum Penalty
Sentence Imposed
Count 1:
Between 1 January 1997 and 14 June 2005, the offender had a sexual relationship with the complainant.
20 years
10 years and 6 months
Count 2:
On 11 November 2006, the offender sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his tongue.
10 years
18 months concurrent
Count 3:
On 11 November 2006, the offender sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his fingers.
10 years
18 months concurrent
Count 4:
On 11 November 2006, the offender sexually penetrated the complainant, a child whom he knew to be his de facto child, by penetrating her vagina with his penis.
10 years
4 years concurrent
Count 5:
On 11 July 2007, the offender sexually penetrated the complainant without her consent, by penetrating her vagina with his tongue.
14 years
18 months concurrent
Count 6:
On 11 July 2007, the offender sexually penetrated the complainant without her consent, by penetrating her vagina with his fingers
14 years
18 months concurrent
Count 7:
On 11 July 2007, the offender sexually penetrated the complainant without her consent, by penetrating her vagina with his penis.
14 years
4 years cumulative on count 1
The complainant was born on 15 June 1989. The offences occurred between 1 January 1997 and 11 July 2007. The trial judge imposed a total effective sentence of 14 years 6 months' imprisonment with eligibility for parole. The offender was aged 44 when sentenced.
In about 1996, the offender commenced a relationship with the complainant's mother. Shortly after, the complainant, her mother and the complainant's brother commenced living with the offender at his home. The complainant was then aged about 7 years 6 months. In September 1997, the offender married the complainant's mother. Although he was not her biological father, the offender's name was placed on the complainant's birth certificate. The complainant was raised in the belief that she was the offender's biological daughter. She remained of that belief until, at the age of 18 years, her mother told her the truth.
In about 2001, the offender and the complainant's mother separated. The mother was a drug addict. She left the family home with the complainant's younger brother. The complainant remained with the offender. The complainant gave evidence at the trial that from the time she was 8 years old until she was 18, the offender raped her 'continuously'. She said that sexual acts were committed against her on an almost daily basis.
The sentencing judge identified numerous features which, in combination, required that the offending be characterised as within the upper end of the range of seriousness. These features included:
(a)The offending occurred over a period of about 10 years.
(b)The offender was in a position of trust and authority in relation to the complainant, being her step-father, and he was regarded by the complainant as her natural father. He had assumed sole care and responsibility for her from 2001.
(c)By reason of the complainant's mother's substance abuse and the offender's sole parental role in relation to the complainant from 2001, the complainant was particularly vulnerable, having no one else to care for, protect or raise her.
(d)The young age of the complainant at the commencement of the offending, being 8 years.
(e)The marked age disparity between the complainant and the offender, who was a mature man, being 32 years old at the commencement of the offending and 42 when it ended.
(f)The nature of the offending conduct was exceptionally serious, involving penile/vaginal penetration of the victim from the age of 8.
(g)The offender put his own sexual gratification ahead of all other considerations, including ignoring the complainant's attempts to repel his sexual advances and the obvious physical pain caused to the complainant by sexually penetrating her at such a young age.
(h)Although there was no threat or forceful physical behaviour other than pushing the complainant and removing her clothes, the offender overbore her mentally and physically by reason of his position of trust, physical size and forceful persistence.
(i)The degree of moral corruption of the complainant involving as it did sexual intercourse with the complainant from the age of 8.
(j)The prolonged sexual abuse deprived the complainant of a normal childhood and adolescence and of her innocence.
(k)The offender's sexual abuse of the complainant caused her to become pregnant at the very young age of 12, which resulted in her undergoing a termination procedure.
(l)The significant and ongoing negative effect of the offending behaviour upon the complainant.
The sentencing judge characterised the offending conduct as a whole as 'nearing the worst category of this type of case to come before the court'.
The offender had reasonably good personal antecedents including no relevant prior convictions.
This court dismissed the offender's appeal against sentence.
In SWD, the offender was convicted after a trial of six child sex offences. Each count alleged that he sexually penetrating a child known to be his lineal relative, contrary to s 329(2) of the Code. The complainants were the offender's son and daughter. When the offences were committed both complainants were under the age of 16 years. The maximum penalty for each offence was 20 years' imprisonment. See s 329(9)(a) of the Code. The sentencing judge imposed a total effective sentence of 14 years' imprisonment with eligibility for parole.
The offender's criminal behaviour towards his children was horrific. Murphy JA recounted the salient features of the offences, as follows:
In or about September 1997, the appellant's wife was in hospital for an operation. The appellant had the care of his son, then aged 10, at home. The appellant went into the bedroom where his son was sleeping and sexually penetrated him. There were two related events. The first was forceful digital penetration of his son's anus (count 1). The second was forceful penile penetration of his son's anus (count 2). Severe pain was inflicted. In the course of committing the offences, the appellant held his hand over his son's mouth to stop him from crying out. The appellant told his son that 'big boys don't cry'. After the offences, the appellant told his son not to tell anyone about what had happened and added that if his son did tell anyone, he (the appellant) would kill the mother. The son believed the threat to be credible. He knew that the appellant kept a gun and had witnessed the appellant being violent towards his mother and had been the subject of other violence from the appellant himself. In the ensuing days, the son was sufficiently distraught that he made plans to leave home, although those plans were never put into effect. The offences had not been isolated. There had been other uncharged instances of sexual conduct towards the son by the appellant prior to the commission of these offences in September 1997.
By 1999, the appellant had separated from his wife. His children, including his daughters from the marriage, stayed with him overnight for a period of time on access visits. In or about mid-1999, the appellant sexually penetrated his elder daughter, 'S', on four separate occasions when she stayed at his home. She was 7 to 8 years old at the time. The four occasions were not isolated, and represented a course of sexual conduct over a six-month period.
On one occasion (count 3), when S was sleeping, the appellant picked her up and took her to his bed and forcefully penetrated her vagina with his penis. He told her that she 'wanted this' and 'deserved this'. He used his body weight whilst on top of her to stop any physical resistance. He put a pillow on her head to stop her from calling for help. The child felt that she was suffocating. The appellant's youngest daughter 'K', who at that time was about 6 years old, was disturbed by the noise and came to investigate. She had heard this noise before, but had not previously attempted to investigate its source. K saw what was happening, and despite her age, comprehended to some extent the seriousness of the appellant's conduct. She smashed the bedside lamp over the appellant's head to stop the assault, and took S by the hand and pulled her to safety in the bathroom, where they locked themselves in. The appellant yelled at them to unlock the door for some time before eventually tiring of waiting for them to come out. The two girls took that opportunity to run next door to hide.
On another occasion (count 4), S and K had fallen asleep together on the appellant's bed. The appellant removed K to the lounge room, and then went back to where S was sleeping. He placed a pillow over S's head and forcefully penetrated her vagina with his penis.
On the next occasion (count 5), S was staying alone with the appellant. The other children were elsewhere. She was asleep in a spare bedroom when the appellant came into her room and forcefully penetrated her vagina with his penis. He did not place a pillow over her head on this occasion - there was no-one else at home to hear her cries.
The next occasion (count 6) occurred after the appellant, his children and another family had returned home from a day trip to Fremantle. S and K were sleeping together on the couch. The appellant removed K to the spare bedroom. He returned to the lounge room, where S was sleeping on the couch and forcefully penetrated her vagina with his penis. S thought that he had placed a pillow over her face on this occasion, too.
The four episodes referred to above were not isolated, and as I have indicated, were representative of sexual conduct by the appellant towards his daughter over a period of approximately six months. There was no voluntary cessation of the conduct. The abuse only ended when the daughter refused to attend overnight visitations with her father.
In order to cover up his conduct, the appellant threatened to come after S, her brothers and sister, and to kill them, if she told anyone. S knew that the appellant had a gun and believed his threats. K was not threatened by the appellant, but for some time did not tell anyone what she had seen as she had promised S not to tell anyone.
The forceful penetration of his son's anus caused tearing, severe pain and discomfort for some days. The appellant's forceful penetration of his daughter's vagina caused her immense pain. She also suffered very serious injury. Although the precise occasion or occasions could not be pinpointed, the appellant had, by his penetration of her vagina, torn through the skin between the vagina and anus. The injury was so severe it had torn through the muscle layers in this area as well, including the pelvic floor muscles. The daughter's vagina is now classed as very abnormal and requires reconstructive surgery. The surgery would require a general anaesthetic, and may need to be delayed until after she has finished having children [3] ‑ [11].
The offender evinced no remorse. He had no insight. The complainants were seriously damaged both emotionally and physically. There were no mitigating circumstances that could be given any material weight. There was no confidence that there was no real risk of the offender reoffending.
The offender does not appear to have had a relevant prior criminal record.
This court dismissed the offender's appeal against sentence.
The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences 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 that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are well-established by the case law.
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 limit of the range. See Neumann v The State of Western Australia [2013] WASCA 70 [30] (Buss JA, McLure P & Pullin JA agreeing).
In the present case, the offending, while not within the 'worst category' for the purposes of the majority's decision in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [43] (Wheeler & Pullin JJA, Owen JA agreeing), was extremely serious.
The appellant sexually abused four young girls. He assaulted and corrupted two generations of children within his family. His attitude towards and treatment of the complainants was despicable.
The appellant's history in relation to his nieces, L and J, his daughter, A, and his grand‑daughters, N and C, shows an incorrigible and abiding sexual interest in young girls. He has no insight or remorse and no empathy for his victims. It appears, at least in the context of his paedophilia, that he is without pity or probity.
The extremely serious nature of the offending is apparent from the following:
(a)The offences were committed over a long period against two sets of sisters.
(b)The offending commenced against each complainant when she was very young. L was 11 or 12, J was 8, N was 8 and C was 7.
(c)The nature of the offending was depraved and degrading for the complainants. The appellant inflicted various forms of sexual penetration. He usually ejaculated. The appellant was focused on gratifying his perverted sexuality regardless of the consequences for the complainants.
(d)Some of the offending caused the complainants (especially C) physical pain. The appellant's use of the unsanitary vibrating sex toy on C caused her repeated urinary tract infections. All of the complainants experienced fear, humiliation and degradation. The psychological and emotional implications for them have been substantial. The damage they have suffered is unlikely ever to be fully overcome.
(e)The appellant was controlling and manipulative in his treatment of the complainants, especially N and C. He bribed N and C by giving them money and other rewards.
The views expressed by Dr Febbo about the appellant make for sombre reading. In particular, Dr Febbo noted the presence of sexual violence, psychological coercion in sexual violence, extreme minimisation and denial of sexual violence, a history of alcohol‑related problems, sexual deviance, problems with self‑awareness and attitudes that support or condone sexual violence. The appellant is at considerable risk of reoffending.
The appellant is not a person who is, apart from the offences of which he was convicted before the trial judge, a person of good character. As I have noted, in 1983 and 1984, the appellant committed incest with his daughter, A, when she was 10 or 11 and he was 35 or 36. The incest involved numerous acts of penile/vaginal intercourse. The appellant's conviction on 5 May 1984, of one count of incest with A, and the sentence of 5 years' imprisonment with a minimum term of 2 years 4 months, did not personally deter him. He was not, in the slightest respect, rehabilitated. Although the appellant could not be (and was not being) punished again for his criminal behaviour against A, his prior record reflected on his moral culpability for the offences against N and C between 2005 and 2008. It emphasised the need for personal deterrence.
The offences against L, J, N and C, of which the appellant was convicted, were not isolated occurrences. They were representative offences and part of an ongoing course of conduct. The appellant could not be (and was not being) punished for offences against L, J, N or C with which he had not been charged or convicted. However, the extensive and persistent sexual abuse demonstrates that the offences of which he was convicted were not aberrations or out of character.
The appellant's age when sentenced, the ingrained nature of his offending, his failure to respond positively to the term of imprisonment he served for incest with his daughter, his stance of denial, his refusal to take responsibility for his actions, the absence of any remorse or victim empathy, his long standing sexual deviance and his psychological structure make rehabilitation an unlikely prospect.
Although the appellant was, of course, entitled to proceed to trial, he could not claim the mitigation that pleas of guilty would have brought.
The trial judge rightly observed that there was very limited mitigation.
The primary sentencing considerations were condign punishment, personal and general deterrence and the protection of vulnerable children.
In my opinion, when the total effective sentence of 16 years' imprisonment (with 14 years to be served before eligibility for parole) is assessed in the context of the facts and circumstances of the offending, the vulnerability of and damage suffered by the complainants, the maximum penalties, all aggravating factors and all mitigating factors (including the appellant's age) and the comparable cases, it cannot reasonably be contended that the sentence infringed the first limb of the totality principle. Although the total effective sentence was, no doubt, high, it was proportionate to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances and all relevant sentencing principles.
Ground 1 is without merit.
The appellant will be aged 77 when he becomes eligible for parole and he will be 79 upon completion of the sentence. He was not, at the time of sentencing, of a very advanced age.
There was no suggestion that the appellant is suffering from any relevant illness; notably, any illness which could not be treated effectively in prison or any illness which would result in his imprisonment being more onerous than would ordinarily be the case. But I accept that, given his age, there is a reasonable possibility that his health will deteriorate while he is in custody. However, the provisions of the Prisons Act and the Prisons Regulations require that proper medical treatment be made available to prisoners and, if necessary, an absence permit may be given to enable their treatment in an appropriate institution in the general community.
The appellant was not sentenced merely for offences which he had committed many years ago. His offending against N and C was appalling and relatively recent. This is a matter of some importance in applying the second limb of the totality principle. The present case did not involve an offender who had ceased intra‑familial sexual offending a long time ago. Also, it did not involve an offender who had been wholly or substantially rehabilitated.
The trial judge took into account the appellant's age in determining the total effective sentence. Unfortunately, from the appellant's viewpoint, the very egregious character of his offending, the considerable risk of his reoffending, the necessity for condign punishment, and the demands of personal and general deterrence very substantially reduced the extent to which humanitarian considerations, based on the appellant's age,
could be accommodated in the sentencing outcome. It is not reasonably arguable that the total effective sentence, while very substantial, infringed the second limb of the totality principle.
Ground 2 is without merit.
Appeal against sentence: conclusion
Neither ground 1 nor ground 2 has a reasonable prospect of success. Leave to appeal should be refused. The appeal against sentence must therefore be dismissed.
MAZZA JA: Leave to appeal against both conviction and sentence should be refused for the reasons given by Buss JA with which I agree.
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