EXF v The State of Western Australia
[2015] WASCA 118
•11 JUNE 2015
EXF -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 118
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 118 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:169/2014 | 14 APRIL 2015 | |
| Coram: | MARTIN CJ BUSS JA HALL J | 11/06/15 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time refused Appeal Dismissed | ||
| B | |||
| PDF Version |
| Parties: | EXF THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Extension of time Indecent dealing offences against three child victims Whether aggregate sentence of 11 years and 6 months' imprisonment infringes the totality principle |
Legislation: | Nil |
Case References: | Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 ERA v The State of Western Australia [2013] WASCA 163 Gavin v The Queen (1992) 6 WAR 195 GHK v The State of Western Australia [2014] WASCA 19 GHS v The State of Western Australia [2006] WASCA 42 GMS v The State of Western Australia [2009] WASCA 107 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hughes v The State of Western Australia [2014] WASCA 78 Juma v The State of Western Australia [2011] WASCA 54 KMB v The State of Western Australia [2010] WASCA 212 Lancaster v The Queen (1989) WAR 83 LWJR v The State of Western Australia [2009] WASCA 200 M v The State of Western Australia [2006] WASCA 256 MPD v The State of Western Australia [2008] WASCA 57 PDS v The State of Western Australia [2006] WASCA 20 PP v The State of Western Australia [2004] WASCA 144 R v Leggett [2000] WASCA 327 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 Prince [2011] WASCA 22 VIM v The State of Western Australia [2005] WASCA 233; (2005) 158 A Crim R 243 Wilson v The State of Western Australia [2014] WASCA 236 Wimbridge v The State of Western Australia [2009] WASCA 196 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : EXF -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 118 CORAM : MARTIN CJ
- BUSS JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 2 of 2009
Catchwords:
Criminal law - Appeal against sentence - Extension of time - Indecent dealing offences against three child victims - Whether aggregate sentence of 11 years and 6 months' imprisonment infringes the totality principle
Legislation:
Nil
Result:
Extension of time refused
Appeal Dismissed
Category: B
Representation:
Counsel:
Appellant : Mr E J Myers
Respondent : Ms A C Longden
Solicitors:
Appellant : Peter J Griffin & Co
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
ERA v The State of Western Australia [2013] WASCA 163
Gavin v The Queen (1992) 6 WAR 195
GHK v The State of Western Australia [2014] WASCA 19
GHS v The State of Western Australia [2006] WASCA 42
GMS v The State of Western Australia [2009] WASCA 107
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hughes v The State of Western Australia [2014] WASCA 78
Juma v The State of Western Australia [2011] WASCA 54
KMB v The State of Western Australia [2010] WASCA 212
Lancaster v The Queen (1989) WAR 83
LWJR v The State of Western Australia [2009] WASCA 200
M v The State of Western Australia [2006] WASCA 256
MPD v The State of Western Australia [2008] WASCA 57
PDS v The State of Western Australia [2006] WASCA 20
PP v The State of Western Australia [2004] WASCA 144
R v Leggett [2000] WASCA 327
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 Prince [2011] WASCA 22
VIM v The State of Western Australia [2005] WASCA 233; (2005) 158 A Crim R 243
Wilson v The State of Western Australia [2014] WASCA 236
Wimbridge v The State of Western Australia [2009] WASCA 196
Woods v The Queen (1994) 14 WAR 341
1 MARTIN CJ: This application for an extension of time within which to appeal, and the appeal, should be dismissed for the reasons given by Hall J, with which I agree.
2 BUSS JA: I agree with Hall J.
3 HALL J: On 14 August 2009 the appellant was sentenced to a total effective sentence of 11 years and 6 months following his pleas of guilty to 14 counts of indecent dealing with a child under the age of 13 years contrary to s 189(2) of the Criminal Code (WA). He now seeks leave to appeal against the total sentence on the ground that it infringed the first limb of the totality principle, that is he claims that the total sentence did not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.
4 The appeal notice was not filed until 26 September 2014, that is to say more than five years out of time. Accordingly the appeal cannot proceed unless an extension of time is granted: s 28(3) Criminal Appeals Act 2004 (WA).
Extension of time - principles
5 Where there has been a lengthy delay in filing an application for leave to appeal the court requires exceptional circumstances to be established before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: Gavin v The Queen (1992) 6 WAR 195, 198 (Malcolm CJ). See also Juma v The State of Western Australia [2011] WASCA 54 [5]; Wimbridge v The State of Western Australia [2009] WASCA 196 [19] (Wheeler JA, Buss & Miller JJA agreeing); Lancaster v The Queen (1989) WAR 83, 85 and Wilson v The State of Western Australia [2014] WASCA 236 [27].
6 Whilst Gavan and Lancaster were referring to an earlier statutory provision the principle has been held to apply in the context of s 28(3) of the Criminal Appeals Act, which requires that appeals be commenced not later than 21 days after the date of the decision.
7 In Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [113] - [114] Wheeler JA (in dissent on the outcome of the appeal) questioned whether the statutory time limit would serve any purpose if all that was required to obtain an extension was that there be a ground which would have succeeded in a regularly instituted appeal. Her Honour concluded that, in her view, more was required to be demonstrated than that an appeal ground will be successful before the discretion to grant an extension of time should be exercised. Her Honour reiterated that view in Wimbridge [21]. She then referred to some of the factors that may be relevant in considering whether a miscarriage of justice has occurred, including whether the decision appealed from has resulted in serious consequences for the appellant, such as a very lengthy term of imprisonment.
8 Also in Wimbridge Buss JA said that there were generally five factors to be considered in determining whether to grant an application for an extension of time to appeal against conviction:
First, the nature and extent of the delay. Secondly, the reasons for the delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors [45].
Extension of time - reasons for delay
9 In support of his application for an extension of time the appellant has filed an affidavit. He says that after being sentenced on 16 June 2009 the lawyer who was then acting for him asked whether he wished to appeal the sentence. The lawyer told him the amount of money it would cost to brief a barrister. He did not have that money available and then applied for legal aid. He states that legal aid was denied due to his wife's income.
10 The appellant states that at the time of his imprisonment he jointly owned a house with his wife and also owned a car. However, he had outstanding debts on credit cards and the house was subject to a mortgage. Following his imprisonment his wife was unable to meet the mortgage payments and the house was sold with a shortfall owing to the mortgagee. At the end of 2009 his wife declared herself bankrupt, which remained the case until she was discharged three years later. He says that he also declared himself bankrupt at around the same time.
11 The appellant states that in 2010 he did not have money available to pay a lawyer. At this time his wife was employed as a kitchen hand and 'from time to time she had to work a second job to support herself and her children'. The implication is that the appellant's wife was not earning enough to pay for a lawyer. However, the appellant states that in December 2012 he applied for legal aid but was refused 'because my wife was working'.
12 The appellant states that he contacted lawyers regarding a possible appeal in early 2013 and again in early 2014. On each occasion he could not proceed with an appeal as he did not have sufficient funds to pay the lawyers concerned. He says that by August 2014 his wife had saved sufficient money to finance an appeal. He then briefed his present lawyer to act for him.
13 The delay in this matter is gross. That delay is not adequately explained by the appellant's affidavit. In particular there is no explanation for the failure to reapply for legal aid at the end of 2009 when he states that both he and his wife became bankrupt. He did not reapply until December 2012, by which time the bankruptcies may well have expired. The only reason given for not pursuing an appeal during the three year period from 2009 to 2012 is that the appellant says that he was 'depressed as to my financial position and I felt I was unable to get assistance'. That explanation falls very far short of justifying that part of the delay.
14 In any event the whole of the delay is said by the appellant to be a consequence of his inability to obtain legal representation. It is understandable that a person wishing to appeal against their conviction or sentence will seek the assistance of a lawyer. Reasonable efforts to obtain the services of a lawyer may result in some delay in commencing an appeal. But when it becomes apparent that the person can either not afford to pay a lawyer or obtain one at public expense that cannot become a justification for doing nothing. In these circumstances a person wishing to pursue an appeal will need to do so without the benefit of a lawyer. It is common for appellants to represent themselves on appeals against conviction and sentence and such appellants are expected to, and frequently do, comply with the time limits.
15 There is nothing exceptional about the appellant's circumstances that could possibly justify a delay of the length involved here. In those circumstances the application to extend time critically depends on whether there would be a miscarriage of justice if an extension is not granted. This requires consideration of the merits of the ground of appeal and whether there would be any prejudice to the appellant if an extension was not granted or to the State if it is.
The facts
16 The appellant was initially charged with 19 offences. However, he pleaded guilty to 14 counts on what was to have been the first day of his trial and those pleas were accepted in full satisfaction of the indictment. However, the 14 counts were representative of a course of conduct by the appellant in respect of his three step-daughters. The counts to which the appellant pleaded guilty were counts 2, 3, 4, 5, 6, 7, 9, 11, 12, 13, 14, 15, 17 and 18.
17 In 1981 the appellant began dating the mother of the complainants. After a few months the mother and her three daughters moved into the appellant's house in a country town. At that time N was 6 years of age, J was 5 years of age and C was 2 years of age. The appellant and the children's mother continued in a de facto relationship and had two further children together, boys born in 1984 and 1986.
18 The children's mother did shift work at a hotel, which meant there was significant amounts of time during which the girls were in the appellant's care when their mother was at work. Further, each of the two sons was born prematurely and as a result the girls' mother stayed in Perth for periods of time and left the appellant looking after the girls alone. He treated the girls as his daughters and they regarded him as a father figure.
Offences involving J
19 Counts 2, 3, 4 and 5 on the indictment involved the middle child, J. She described ongoing sexual abuse over an approximately five year period, when she was aged between 4 and 10 years old.
20 The facts in relation to count 2 are that on a date unknown between 27 May 1980 and 28 May 1982 the appellant and J were at home alone. At this time J was aged five or six. The appellant, wearing only underpants, took J to the toilet. He then pulled his underpants down exposing his erect penis. He then took J's hand and placed it on his penis and made her masturbate him until he ejaculated over her hands. He then told her to eat the ejaculate which, though unwilling, she attempted to do. The appellant then laughed, wiped her and took her into the kitchen where he gave her a lolly. He then told J that she was his favourite of all of the children and that she should keep what had just occurred to herself.
21 The events that are the subject of count 3 occurred shortly after. On this occasion J was sitting on the toilet when the appellant walked in. He pulled her knickers off completely, kneeled in front of her, spread her legs and performed cunnilingus on her. J said that this type of touching occurred often and that sometimes the appellant masturbated at the same time.
22 The facts of count 4 are that, at around the same time, the appellant again entered the toilet where J was sitting and made her perform oral sex on him until he ejaculated. J said in her statement that this type of thing occurred on multiple occasions. She also said that she was very scared and that the appellant forced her to engage in oral sex by holding the back of her head and putting his penis in her mouth. Afterwards he told J to wait for five minutes before leaving the toilet.
23 J said that between the ages of six and 11 years of age whenever she went into the house and heard the appellant whistle she knew that he would be waiting to take her to the toilet and perform some sex act on her. She said that she knew she had no choice and that this happened so often she could not count the number of times. The sentencing judge acknowledged that the appellant was not to be sentenced for anything other than those offences which he admitted, but she accepted that the offences had occurred in the context of ongoing abuse.
24 The facts in relation to count 5 are as follows. On 26 April 1984 the appellant and the girls' mother had their first son. This required the appellant and his de facto wife to travel to Perth. Initially the girls were looked after by their maternal grandmother but after the appellant returned from Perth he looked after them alone. One night the appellant got J up out of bed and took her into the lounge room. He sat on a beanbag and made J kneel on the floor in front of him and perform fellatio on him. She described this as occurring with such force that she gagged and dry-wretched. She suffered small cuts on the side of her mouth that subsequently turned into sores.
25 When J was about 10 or 11 years old the family moved to a house in a town in the north west of the State. At around this time she told the appellant that she was not going to do 'it' anymore. At around this time J asked her mother if she could stay overnight at a friend's house and her mother agreed. Later that night, after J's mother had gone to work, the appellant went to J's room and told her to sleep in his bed. She refused and he told her that if she did not sleep in his bed she would not be allowed to stay at her friend's house. She told him that she did not care and was going to tell her mother. The appellant then left the room but returned a short time later and told her that it was all right if she stayed overnight with her friend.
26 Not long after that conversation the appellant told J that he was not going to do any of it to her again. The sentencing judge concluded from that that the appellant was beginning to be wary of J and was concerned that she might disclose what had been occurring. However, even though the appellant stopped touching J, he would still on occasion masturbate at the end of her bed at night and he later made admissions to this effect when interviewed by police.
Offences involving N
27 Counts 6, 7 and 9 involved the oldest sister, N. These offences also occurred over a five year period, when N was aged between 7 and 13 years old. The sentencing judge noted that the offending in respect of N was of a less serious nature and this appears to have been because she was the least compliant and the oldest of the children.
28 The first incident involving N (count 6) occurred on a date unknown between 15 January 1982 and 16 January 1983. One evening when the mother of the children was at work they were playing with the appellant. The appellant tickled N and whispered in her ear 'You can get back up when they're all asleep'. After the children had gone to bed the appellant came to the passage and whistled, motioning for N to come out of her bedroom. She was excited because she was not usually allowed to get up after being sent to bed. The appellant then took N to the lounge room and asked her if she knew how to kiss like a 'big person'. She said 'yes' and the appellant then started to kiss her. She said she kissed him back for a long time in a way she had seen on television. The appellant then told her to go back to bed and said, 'this is our secret'. N went back to bed feeling very grown up. The sentencing judge found that the kiss was in a sexual context and was an attempt by the appellant to groom N to become a sexual partner.
29 Count 7 occurred on the following night. The appellant again told N that she could get up once the others were asleep. N got up and she and the appellant kissed on a couch in the lounge room. The appellant told her that she was good at it and then showed her a portion of a pornographic video showing a woman performing oral sex on a man. It is the kissing that constitutes the offence but the showing of the video was part of the context and was not disputed. N was shocked and disgusted by what she saw and left the room and went back to bed.
30 Another incident occurred at around this time which was not the subject of a charge but which the sentencing judge was satisfied had occurred. N walked out of the shower one day wearing a towel and the appellant grabbed her and lifted her over his head. She became angry because she had no knickers on and was self-conscious. She shouted at the appellant not to do it again. The sentencing judge noted that N appeared to be a little girl from whom the appellant was at a risk that she might be loud and vocal about what was occurring. She also described other incidents which were not the subject of the charges, in particular seeing the appellant masturbating. The appellant later admitted to the police that he had behaved in this way, saying that he masturbated at least daily and that on occasion the girls had seen him.
31 Count 9 occurred after the family moved to a second house in Karratha. At this time N was around 10 or 11. She would customarily sleep wearing a long summer nightie. One night she woke to feel the appellant pulling her knickers to the side. She knew it was him because he smelt of cigarette smoke and she could feel his rough fingers. She started to open her eyes and heard the appellant run out of the room.
32 N described a further incident that was not the subject of a charge. She said that one night when she was sleeping in the same room as her two younger sisters she awoke to see the appellant masturbating. Her sisters' pyjamas had been pulled up to their waists. N made some noise and the appellant ran out of the room. N felt upset that she lacked the courage to confront the appellant.
Offences involving C
33 Counts 11, 12, 13, 14, 15, 17 and 18 involved C, the youngest of the three girls. This offending occurred over a three to four year period, when C was aged between 4 and 7 years old.
34 Counts 11 and 12 occurred on or about 26 April 1984 when C was aged around four years of age. One of the appellant's sons had just been born and his de facto wife was still in Perth. On this occasion the appellant took C from her bedroom into his own. He sat on the bed with his head leaning against the headboard and pulled C onto the bed. He pulled her knickers off and stood her in front of him with her back to him. He lowered her so that she was straddling him with her genitals near his face. He then performed oral sex on her. This involved licking her vagina (count 11) and then licking her anus (count 12). He then took her to the kitchen, gave her two small chocolates and indicated that she should say nothing.
35 Count 13 occurred sometime later when C was around four or five years old. The appellant went to C's bedroom at night and placed his fingers under her underwear. He touched her vagina and put his fingers inside her. The touching was very rough and it hurt her. She could feel the appellant's finger nails scratching the inside of her vagina and she was still sore the next day when she urinated. The appellant masturbated as he did this. According to C this was not an isolated incident. She said that these sorts of things occurred often but she felt unable to tell anyone.
36 Count 14 occurred when C was aged five or six. The appellant entered a bedroom which she shared with her sister J. The appellant touched C's vagina, placing his fingers roughly inside her. As he did so he masturbated himself to the point of ejaculation.
37 Count 15 occurred sometime shortly after C's seventh birthday. It was a very hot day and C's mother was sleeping. The appellant was in the lounge room with C and the two younger boys. The appellant started to masturbate in front of C and then made her lean over towards him and perform oral sex on him until he ejaculated. While this was occurring one of the boys, who was a toddler, kept approaching with toys and C recalls him speaking to the boy in a calm voice. After the incident the appellant went to the bathroom and C ran to a friend's house to ask her to come and play. She thought that this might offer her some degree of protection. The appellant came outside to where the two girls were playing and took C to one side and asked her if she had told her friend anything. C said that she had not and the appellant then told her that if she ran off again he would 'kick her arse'. The sentencing judge said that it was apparent from this and other incidents that the appellant was constantly concerned that one of the girls would say something at some stage and he would be found out.
38 Count 17 occurred when C was seven years of age. She was at home with the appellant when he called her into the lounge room. He was watching television wearing nothing but underpants. He made C sit on the floor in front of him and perform oral sex. As this was occurring the appellant was masturbating himself very vigorously and she describes his penis hitting her face. After what seemed like a long time he ejaculated over her face. She said that it smelt very bad and tasted gross and that it was all over her mouth. The appellant turned the television off and told her to wash her face and then gave her a little gift afterwards. She recalls being regularly told by the appellant not to tell anyone about what he did because it was his business.
39 Another incident occurred at this time which is not the subject of a charge but which was admitted by the appellant in his police interview. The family was camping at a beach. C, the appellant and another man were fishing. The other man left to go to the toilet and the appellant then sat in front of C and told her to pull her knickers to one side. He then stared at C's vagina until the other man returned. No touching took place on this occasion but the sentencing judge found that this incident was indicative of the risks that the appellant was willing to take and the constant nature of his sexualised behaviour towards her.
40 Count 18 also occurred when C was aged seven. On this occasion the appellant was watching pornography and required C to perform oral sex on him. On this occasion she recalls only being able to get the top of his penis into her mouth because her mouth was too small.
41 When C was around 11 years of age C told her sisters that she was going to tell their mother what was occurring. She went to their mother's workplace and told her what was happening and said that her mother needed to protect her because the appellant was molesting her. Her mother then spoke to J who disclosed what had occurred to her. The mother then confronted the appellant. His initial response was to say that it only happened once and that he was drunk. The appellant was told to leave the family house and moved out for a period of about three weeks. The mother then allowed the appellant to return, telling him that the girls had agreed to him moving back. In fact they were placed under considerable emotional pressure to do so by their mother.
How the offending came to light
42 Several years later C left home when she was 15 and reported the abuse to the Department of Child Protection. Her mother refused to discuss the matter with the Department because she said she did not want to upset C who had told her she had reported the matters in confidence.
43 Sometime later J also left home and confronted the appellant about the abuse. He admitted to masturbating in front of C but said that that was all he did. J accused him of being a liar and doing a lot more than that. The girls' mother then confronted the appellant again and asked him if he had abused C and he agreed that he did.
44 When the appellant was interviewed by police on 18 March 2008 he maintained that he had only masturbated in front of the girls. He said that he had gone into their rooms at night and masturbated but maintained that they were asleep at the time. He denied ever showing the girls pornography but admitted that J may have walked in on him on one occasion when he was watching it. He denied any digital penetration. He admitted to having performed oral sex on J and having her do it to him on one occasion and claimed that he had never forced any of the girls to do anything. He denied touching N and said that he had made an advance to her once and that she had said 'no' and that that was it. He denied that C had ever touched him and denied performing oral sex on her. Whilst the interview did contain some significant admissions, the sentencing judge did not accept that the appellant was entirely candid and concluded that he had seriously minimised his abuse of the girls.
Victim impact
45 Victim impact statements were prepared by each of the complainants. They were all significantly affected by the appellant's abusive behaviour.
46 N stated that she felt very anxious and stressed when the appellant was the only adult at home. She never slept well and always dressed in uncomfortable clothing, believing that this would afford her some protection. She woke constantly during the night to pull the covers over herself. As an adult she cannot sleep without a cover. She felt frustration and helplessness at not being able to protect her sisters. She feels guilt and has nightmares about not taking action sooner. Her relationship with her siblings has been affected because, even though they all love each other, being in each other's company is a reminder of their childhood.
47 J stated that her schooling suffered because she was constantly tired from being awake at night. She felt inadequate and lonely as a child and had very few friends. She continues to suffer from broken sleep, which affects her mood. She too is unable to sleep without blankets or clothing on, even in the heat of summer. She has anxiety about going to the toilet because that was the place where much of the abuse against her occurred. She has gone through periods of drug and alcohol abuse and suffers from anxiety and depression. She distrusts men and has had difficulties with her adult relationships. She feels hyper-vigilant in relation to her own children and finds it difficult to allow them to go to friends' houses for sleepovers. She has low self-esteem and after disclosing these matters has felt isolated within the family.
48 C also reports a lonely childhood and having very few friends coming over to play. She also says that she was sleep deprived because she was afraid at night. This affected her schooling. She was also afraid of male teachers. She too experienced drug and alcohol abuse and self-harm. She finds it difficult to engage in healthy relationships and finds she suffers from anger and aggression for no particular reason. She continues to be frightened and suffers nightmares. She had a complete breakdown at one stage and continues to be heavily medicated for anxiety and sleep deprivation. C also speaks of the effect on the family and that none of the adult children really talk to each other anymore.
Personal circumstances
49 The sentencing judge received a pre-sentence report and a psychological report in respect of the appellant. At the time of sentencing he was 56 years of age. He had no criminal record of any relevance. He had a solid work history.
50 The appellant has had three significant relationships. The first with the mother of his two eldest sons. The second with the mother of the complainants, with whom he had two further sons. The third was with his current wife. His first marriage ended when his wife fell in love with another man. This was said to have left him devastated and lacking in confidence. However, not long after he commenced a relationship with the mother of the complainants. That relationship ended in 1999 and after a period of feeling lonely and reclusive the appellant entered his third relationship. He told his third wife about his offending behaviour and she remained supportive, though the sentencing judge doubted whether the appellant had told her the complete and unedited truth.
51 The appellant told both the police and the psychologist that he had difficulty in achieving orgasm in all of his relationships. He said to the police that this was the main reason for his offending. The psychologist concluded that the appellant was submissive in his adult relationships to the point where this was likely to cause underlying resentment. This has been exacerbated under the influence of alcohol. However, no significant pathology emerged in the psychological testing which would adequately explain the offending. The appellant suffers from low self-esteem, anxiety and depression. He was assessed at being at low risk of reoffending and with having minimal treatment needs.
52 The sentencing judge noted:
There's no particular insight given into your offending in the report, but what emerges from my reading of both of those reports and also from the admissions to the police, is the quite typical picture of a man who has low self-esteem for various reasons, who is somewhat submissive in his adult relationships, who has some sexual and intimacy issues, is drinking to the point where he may well be disinhibited, and finding the image of young girls sexually arousing and takes the opportunity to use those children for his own sexual gratification, even though he knows it to be wrong and fears discovery (ts 14/8/2009, page 32).
Sentencing remarks
53 It is unnecessary to detail the sentencing judge's remarks. Her Honour gave lengthy reasons for the sentences she imposed and there is no suggestion that the reasons contain any express error. A brief summary of the remarks will suffice for present purposes.
54 Her Honour noted that the admitted facts represented a serious course of ongoing abuse against the appellant's three step-daughters over several years. She said that it was apparent that the appellant had groomed all three girls. This had included telling J that she was his favourite, telling each of them that the abuse was a secret and offering gifts or rewards.
55 Her Honour noted that the maximum penalty for all of the offences was 7 years' imprisonment. She noted that had the behaviour occurred at the date of sentencing it would have been subject to a much higher maximum penalty. She said that the increased penalties were both a reflection of changing definitions of sexual penetration but also of changing community attitudes and increased awareness of the long term damage suffered by victims of sexual abuse. She accepted that the appellant was to be sentenced according to the penalty regime applicable at the time of the offences. However, she said that in judging the seriousness of the offending she would apply the greater understanding and knowledge that the community and the courts now have of the destructive impact of such offences.
56 Her Honour said that there were no offences of penile penetration, which is generally acknowledged to be the most serious form of penetration. With respect, that is in fact not correct. Several of the counts did involve penile penetration, though not of the vagina. In any event, she said that the offences were very serious and represented sustained abuse.
57 Her Honour noted that each of the offences was committed in gross breach of trust. The appellant was the step-father of the complainants and was entrusted with their care and supervision when their mother was at work or away in Perth.
58 Her Honour said that the sexual interference was regular, sustained and, with two exceptions, without consent. Whilst consent was not an element of any of the charges, the absence of it was a relevant consideration. N did consent initially to the kissing that is the subject of counts 6 and 7 because it made her feel grown up. However, it was clear her attitude towards such special attention changed. Both J and C were at all times entirely unwilling and found the sexual acts committed upon them distressing and at times nauseating and painful. All three girls were in fear of the appellant and were anxious and aware that they were under threat. They each had some awareness that their sisters were targeted.
59 The age of the complainants was a relevant consideration. They were very young, and C in particular was only four when the first offence against her was committed. As such they were particularly vulnerable.
60 Her Honour noted that there was a significant delay between the offences and the prosecution. The offences occurred between 1980 and 1986, that is over 20 years prior to the appellant being sentenced. However, the sentencing judge found that that delay had not impacted on the appellant's life over and above the fact that any guilt and anxiety over potentially being arrested in relation to the charges had been felt over that long period. During that period of time the appellant had enjoyed his liberty, been able to raise his sons and was not exposed as the offender he was. There was no evidence that in the intervening period the appellant had made any serious attempts to make amends to the complainants or to attend to his own rehabilitation. The delay was explicable given that the complainants were only children at the time and that the appellant took steps to ensure their silence.
Sentences imposed
61 The sentencing judge recognised that if she was to impose an appropriate term of imprisonment for each offence and then simply add them up the appellant would face a crushing term. She said that in these circumstances it would be necessary for many of the individual sentences imposed to be ordered to be served concurrently. The sentences imposed by her Honour were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
62 The sentences on counts 4, 7, 13 and 14 were ordered to be served cumulatively on each other. All other sentences were ordered to be served concurrently. This produced a total effective sentence of 11 years and 6 months' imprisonment. The sentence was backdated to 16 June 2009 and an order was made that the appellant be eligible for parole.
Ground of appeal
63 There is a single ground of appeal. It is as follows:
The length of the sentence of 11 years 6 months implies error as it infringes the first limb of the totality principle when compared to sentences for comparable cases:
1.1 The total effective sentence did not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case including those referable to the appellant personally.
Merits of the ground
64 A ground of appeal that asserts that a sentencing judge has infringed the totality principle involves an allegation of implied error. The first limb of the 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, viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally.
65 Prolonged sexual offending by an adult upon a young child within a family environment involves the taking advantage of a position of trust. The dominant sentencing considerations for offending of the type committed by the appellant are punishment of the offender and personal and general deterrence: Woods v The Queen (1994) 14 WAR 341, 345 - 346 (Anderson J, Malcolm CJ and Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ and Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P and McLure JA agreeing).
66 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 is of little weight because offending of this kind usually does not impact on other people or upon their perception of the offender until it is revealed: MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
67 There is no tariff for sex offences 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 the individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations. Where the challenge is to the total effective sentence rather than any individual sentence it remains appropriate to consider other comparable cases to ensure broad consistency and avoid 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).
68 The seriousness of an offence must be determined by taking into account the maximum statutory penalty, the circumstances of the offence (including the vulnerability of any victim), any aggravating factors and any mitigating factors: s 6(2) of the Sentencing Act 1995 (WA).
69 In this case all of the offences were acts of indecent dealing with a child under 13 years of age contrary to s 189(2) of the Criminal Code (WA). That section was repealed on 1 August 1992 and was replaced by other offence provisions. It was, however, the applicable offence provision at the time the offences were committed. The maximum penalty in respect of such offences is 7 years' imprisonment. Whilst it is not relevant to take into account that similar offences committed today would be subject to higher maximum penalties, it is appropriate to take into account contemporary understanding of the seriousness of such conduct: R v Leggett [2000] WASCA 327 [22] and LWJR v The State of Western Australia [2009] WASCA 200. Further, where sexual offending has occurred against a number of child victims some cumulation of the sentences to reflect that fact will be expected: VIM v The State of Western Australia [2005] WASCA 233; (2005) 158 A Crim R 243 [295].
70 The sentencing judge characterised the appellant's offending as 'very serious' and that it 'represented invasive and sustained abuse'. She was correct to do so. The offending was particularly serious for the following reasons:
(1) It continued over a period of approximately 6 years.
(2) It was committed on three very young children.
(3) It involved a gross breach of trust because the complainants were the appellant's de facto's children and he was entrusted with their care and supervision.
(4) There was a substantial difference in age between the appellant and each of the complainants at the time of the offending.
(5) The appellant groomed all three girls individually to become his sexual partner.
(6) The offending was regular, sustained and (with limited exceptions) without consent.
(7) The complainants lived under constant threat of abuse and were in fear of the appellant.
(8) A number of the offences, in particular count 2 against J and count 17 against C, were particularly degrading and humiliating.
(9) All three complainants were aware that the appellant was behaving sexually towards the others.
(10) The complainants found many of the sexual acts distressing and at times nauseating and painful.
(11) The appellant used emotional pressure and coercion to ensure that the complainants remained silent.
(12) The long term effects on the complainants were significant and continuing.
71 The appellant has referred to seven cases which are suggested to be comparable. Those cases are PDS v The State of Western Australia [2006] WASCA 20; GHS v The State of Western Australia [2006] WASCA 42; M v The State of Western Australia [2006] WASCA 256; MPD v The State of Western Australia [2008] WASCA 57; GMS v The State of Western Australia [2009] WASCA 107; The State of Western Australia v Prince [2011] WASCA 22; The State of Western Australia v FJG [2012] WASCA 206.
72 Whilst each of these cases has some factual similarities there are also significant differences, not least the nature of the charges and the maximum statutory penalties applicable. This significantly limits the utility of these cases as comparators: Hughes v The State of Western Australia [2014] WASCA 78 [4] (McLure P with whom Mazza JA agreed).
73 In GHS the offender was convicted after separate trials of multiple sex offences against two of his step-daughters. He was aged 56 when sentenced. He was convicted of seven counts in respect of one step-daughter, including 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. The more serious of the offences had maximum penalties of 20 years and 14 years imprisonment. A total effective sentence of 8 years' imprisonment was imposed in respect of those offences. Five of the offences were committed on the same occasion, shortly after that step-daughter's 12th birthday. The offences were representative of a course of offending that continued against the step-daughter until she was 20 or 21. A second trial resulted in conviction of a further seven counts in respect of the second step-daughter. This included two counts of sexual penetration without consent. The offences were committed on five separate occasions commencing when the second step-daughter was aged 13 and ending when she was aged 21. These offences were also representative of a course of sexual abuse. A total effective sentence of 8 years' imprisonment cumulative was imposed. The aggregate sentence in respect of all of the offences was therefore 16 years' imprisonment with eligibility for parole. On appeal that sentence was reduced to 14 years.
74 In GMS the offender pleaded guilty to 13 counts of sexual offending involving his two daughters. The offences included three of indecent dealing with a child known to be a lineal relative, nine offences of sexual penetration of a child known to be a lineal relative and a count of attempted sexual penetration of a child known to be a lineal relative. The most serious offences had maximum penalties of 20 years and 10 years imprisonment. The offences included acts of penile penetration of the victim's vagina and anus. The offending occurred over a period of 14 years and the charges were representative in nature. The offender was sentenced to a total effective sentence of 12 years and 6 months and an appeal against that sentence was dismissed.
75 In PDS the offender was convicted after trial of six counts in respect of his daughter, who was aged between 12 and 16 years at that time. One of the offences was an offence of sexual penetration of a lineal relative contrary to s 329(9)(a) of the Criminal Code. The maximum penalty for that offence was 20 years' imprisonment. The other five counts appear to have been offences of sexual penetration of a lineal relative over the age of 16 years contrary to s 329(9)(b), which carries a maximum penalty of 10 years' imprisonment. The offences were said to be representative of a course of conduct. A total effective sentence of 12 years' imprisonment was referred to as being 'perhaps severe' having regard to the 'relatively limited number of counts' but was not disproportionate to the totality of the offending [31]. The appeal against sentence was dismissed.
76 MPD involved the sexual abuse of a 12-year-old girl by her mother and step-father. The appellants were convicted on their pleas of guilty of 15 counts and 14 counts respectively. The offending included showing the complainant pornography, encouraging the complainant to masturbate herself in their presence, digital penetration and engaging her in acts of oral sex. There were no offences involving penile penetration of the vagina. The offences included sexual penetration of a lineal relative under the age of 16 years contrary to s 329(9)(a) (maximum penalty 20 years' imprisonment), indecent dealing with a lineal relative under the age of 16 years contrary to s 329(10)(a) (maximum penalty 10 years' imprisonment), indecent dealing contrary to s 321(4) (maximum penalty 10 years' imprisonment) and sexual penetration contrary to s 321(2) (maximum penalty 20 years' imprisonment). Sentences of 10 years and 2 months and 9 years and 7 months were upheld on appeal.
77 In M the offender was convicted on his pleas of guilty of seven counts of indecent dealing with a child under the age of 16 and 15 counts of sexual penetration of the same child. Again, the offending including offences which attracted higher maximum penalties than the offences committed by the appellant. The offender was the step-father of the complainant and the offending took place over a period of two months. The complainant was 12 years of age at the time of the offending. The offending included masturbating in the presence of the complainant, digital penetration and penetration of the complainant's vagina and anus with the offender's penis. A total effective sentence of 10 years' imprisonment was not disturbed on appeal.
78 In Prince the offender was convicted after trial of 17 counts of sexual offences against his grand-daughter who was aged between 9 and 11 years of age during the period of offending. The offences included multiple counts of sexual penetration of a lineal relative, indecently recording a lineal relative and procuring a lineal relative to do an indecent act. The offences carried maximum penalties of 10 or 20 years. Two counts involved penetration of the complainant's vagina and anus by the offender's penis. The offending occurred over a 14 month period. A State appeal against a total effective sentence of 5 years and 3 months was allowed and the sentence was increased to one of 8 years and 6 months.
79 In FJG the offender pleaded guilty to some charges and was convicted after trial of others, totalling 14 offences of a sexual nature against his two daughters. The offending continued over several years when the complainants were aged between 10 and 14 and 8 and 14 years respectively. The offences included multiple counts of indecent dealing and carnal knowledge for which the maximum penalties were 7 years and 20 years' imprisonment respectively. The offending included acts of penile penetration of each complainant's vagina. A State appeal against a sentence of 8 years and 6 months was allowed and the appellant was resentenced to a total effective sentence of 10 years and 6 months.
80 The respondent submitted that the case of GHK v The State of Western Australia [2014] WASCA 19 had some features that are similar to the appellant's case. GHK involved 24 offences of a sexual nature committed against six child complainants over a 15 year period between 1966 and 1980. Four of the complainants were the offender's biological children. Fifteen of the 24 counts in GHK were offences of indecent dealing contrary to s 189(2) of the Criminal Code. There were also seven counts of carnal knowledge, one of attempted carnal knowledge and one of inciting an indecent dealing. The age of the female complainants in GHK ranged from four to 11 years old. The offender pleaded guilty to all of the offences and was sentenced to 16 years' imprisonment which was reduced on appeal to a total effective sentence of 14 years' imprisonment. The respondent accepts that the offending in GHK was more serious than that of the appellant because the period of offending was considerable longer, there were more complainants and the offending involved penile penetration of the vagina. However, the respondent submits that those factors are reflected in the high sentence imposed in GHK.
81 A number of other cases referred to in GHK also attracted higher sentences. They include KMB v The State of Western Australia [2010] WASCA 212; SWD v The State of Western Australia [2012] WASCA 76; and ERA v The State of Western Australia [2013] WASCA 163. It is accepted that the gravity of the offending in each of those cases was more serious than that of the appellant, but again that is said to be reflected in the sentences imposed.
82 All of the cases referred to involve offences other than, or in addition to, offences of indecent dealing. In most of those cases the other offences carried significantly higher penalties. That makes comparison with those other cases problematic. Generally speaking where an otherwise comparable course of conduct results in offences that carry a higher maximum penalty a higher sentence would be expected. But the outcome in any particular case very much depends upon the facts of that case. In the present case the appellant's argument is that whilst his conduct is broadly comparable (or less serious) to the other cases referred to, the offenders in those cases where charged with offences carrying higher maximum penalties. In those circumstances it would be expected that the total effective sentence imposed on the appellant would be less, but in fact it is higher than the total effective sentences imposed in a number of them.
83 The assumption that the other cases are either more serious or factually comparable cannot be unquestioningly accepted. In a number of respects the combination of factors in this case made it particularly serious. Furthermore, the purpose of comparison is not to create some fixed hierarchy of cases into which the appellant's case must be fitted. In every case the existence of discretion means that a range of possible sentences are open. Accordingly, there is limited value in comparing individual cases. The purpose of comparison is to ensure that there is consistency in the application of sentencing principles: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.
84 Comparisons of the conduct of the appellant with other cases produces similarities and differences. Whilst the appellant's conduct did not involve penile penetration of the vagina, there was penetration of other types and, although dealt with as indecent dealing, they must be considered particularly serious examples of that type of offence. The offending was also aggravated by the length of time over which it continued, the very young age of the complainants and the egregious breach of trust that was involved. Some accumulation of sentences was necessary in this case to reflect the fact that the offending involved multiple complainants.
85 There were very few mitigating factors. The delay was not mitigating because there was nothing to suggest that the appellant had shown any remorse or contrition for his offending nor taken any steps in the period that elapsed to attend to his rehabilitation. Cooperation with the police was limited and the pleas of guilty were entered at a very late stage. Unlike a number of other cases there was no suggestion that the appellant would suffer particular hardship due to his age or health.
Conclusion
86 In my view, whilst it could be said that the total effective sentence was high having regard to the maximum penalty for the offences, it was not a sentence that was disproportionate to the total offending. There were factors in this case that made a high sentence appropriate. Accordingly, I am unable to conclude that there was an error in the exercise of discretion by the sentencing judge.
87 In my view, the appellant has not established that a miscarriage of justice would occur if he was not granted an extension of time to appeal. Accordingly, I would make the following orders:
1) Extension of time to appeal refused.
2) Appeal dismissed.
24
26
1