French v The Queen
[2001] WASCA 251
•24 AUGUST 2001
FRENCH -v- THE QUEEN [2001] WASCA 251
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 251 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:271/2000 | 18 JULY 2001 | |
| Coram: | MALCOLM CJ ANDERSON J McKECHNIE J | 24/08/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal 271/2000 allowed and sentence reduced Appeal 272/2000 dismissed | ||
| D | |||
| PDF Version |
| Parties: | ANTHONY JOHN FRENCH THE QUEEN |
Catchwords: | Criminal law Sentencing Offences closely related in time and place Whether order for concurrency should be made Whether totality principle breached when two sentences imposed on offences in the one indictment No new principles |
Legislation: | Criminal Code (WA) |
Case References: | Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 72 ALJR 1416 Atholwood (2000) 110 A Crim R 417 "CA" v The Queen [2000] WASCA 176 Honeybone v The Queen, unreported; CCA SCt of WA; Library No 960430; 7 June 1996 James v The Queen [2000] WASCA 100 Jarvis v The Queen (1993) 20 WAR 201 Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996 Kastercum (1972) 56 Crim App Rep 298 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Pinkstone (2000) 114 A Crim R 377 Podirsky (1989) 43 A Crim R 404 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Leggett [2000] WASCA 327 R v Westall [1998] WASCA 137 Ruane (1979) 1 A Crim R 284 Shaw (1989) 39 A Crim R 343 Siganto v The Queen (1998) 194 CLR 656 Ward (1999) 109 A Crim R 159 Woods v The Queen, unreported; CCA SCt of WA; Library No 940388; 28 July 1994 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : FRENCH -v- THE QUEEN [2001] WASCA 251 CORAM : MALCOLM CJ
- ANDERSON J
McKECHNIE J
- CCA 272 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Offences closely related in time and place - Whether order for concurrency should be made - Whether totality principle breached when two sentences imposed on offences in the one indictment - No new principles
Legislation:
Criminal Code (WA)
(Page 2)
Result:
Appeal 271/2000 allowed and sentence reduced
Appeal 272/2000 dismissed
Category: D
Representation:
Counsel:
Applicant : Ms B J Lonsdale
Respondent : Mr D Dempster
Solicitors:
Applicant : Dwyer Durack
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 72 ALJR 1416
Case(s) also cited:
Atholwood (2000) 110 A Crim R 417
"CA" v The Queen [2000] WASCA 176
Honeybone v The Queen, unreported; CCA SCt of WA; Library No 960430; 7 June 1996
James v The Queen [2000] WASCA 100
Jarvis v The Queen (1993) 20 WAR 201
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
Kastercum (1972) 56 Crim App Rep 298
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Pinkstone (2000) 114 A Crim R 377
Podirsky (1989) 43 A Crim R 404
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
(Page 3)
R v Leggett [2000] WASCA 327
R v Westall [1998] WASCA 137
Ruane (1979) 1 A Crim R 284
Shaw (1989) 39 A Crim R 343
Siganto v The Queen (1998) 194 CLR 656
Ward (1999) 109 A Crim R 159
Woods v The Queen, unreported; CCA SCt of WA; Library No 940388; 28 July 1994
(Page 4)
1 MALCOLM CJ: These were two applications for leave to appeal against sentence which were heard together. The applicant was originally charged on one indictment containing seven counts of sexual offences. The indictment was severed. The proceedings at the two separate trials have been summarised in the reasons for judgment to be published by McKechnie J. I agree with his Honour that the applications for leave to appeal should be granted in respect of CCA 271 of 2000 on the basis that grounds 1(a) and (b) have been made out, namely, that the sentencing discretion of the learned sentencing Judge miscarried because his Honour failed to exercise the sentencing discretion in respect of the three offences in the manner required in accordance with Pearce v The Queen (1998) 72 ALJR 1416 at [45] per McHugh, Hayne and Callinan JJ who said:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality."
- See also Mill v The Queen (1988) 166 CLR 59.
2 Further, the learned sentencing Judge erred in failing to make the sentences in respect of counts 2 and 3 concurrent because of the overlap between the two offences because the conduct the subject of count 2 was an act done by way of a preliminary step in committing the more serious offence the subject of count 3 so that both offences were part of one particular course of criminal conduct which in substance amounted to a single transaction.
3 So far as the sentence the subject of CCA 272 of 2000 is concerned, I agree with McKechnie J that, while leave to appeal should be granted, the appeal should be dismissed.
4 ANDERSON J: I have read in draft the reasons for judgment of McKechnie J. I agree with those reasons and with the orders proposed. There is nothing I wish to add.
McKECHNIE J:
Introduction
5 These two applications for leave to appeal against sentence were heard together. The applicant was charged on one indictment containing seven counts of sexual offences. The indictment was severed. Counts 1
(Page 5)
- to 4 involved three counts of unlawful and indecent dealing with a girl under the age of 17 and one count of carnal knowledge of a girl under the age of 17, the applicant being the guardian of the girl. I will refer to her as "K".
Proceedings at the first trial
6 The applicant pleaded not guilty and stood trial on 21 November 2000 at Bunbury before Viol DCJ and a jury on counts 1 to 4.
7 In outline, the Crown case was that "K" had been made a ward of the State at the age of 14 and was placed into the care of the applicant and his wife. It appears this occurred because the complainant had been sexually abused by her father and brother and physically abused by her mother.
8 The first count related to an incident when the applicant's wife was absent. "K" was sitting on the floor of the lounge watching television. The applicant sat next to her speaking of sexual matters, putting his hand inside her pyjamas and rubbing her vaginal area.
9 The second and third counts occurred on a Sunday night when the applicant's wife was again absent. The applicant asked "K" if she would sleep in his bed that night because he was lonely. "K" did so. Later in the night she woke, finding the applicant rubbing her vagina. He then lay on top of her and had sexual intercourse with her.
10 The final count related to an event when the applicant and "K" travelled to Bunbury to collect the applicant's wife from the train station. The applicant drove and "K" sat in the front passenger seat. When it was getting dark, the applicant put his hand inside "K's" clothing and again rubbed her vagina.
11 The applicant had made a video record of interview during the course of which he denied the particular events. He did not give evidence. He was convicted after trial.
12 The applicant was sentenced on 23 November 2000. In the course of his sentencing remarks the learned Judge noted that the particular offences were the more grave by reason of the fact that "K" had been placed in his care to establish some form of normality after sexual abuse. His Honour said:
"The situation was, as you were well aware, that ["K"], …, had been for many years before she came into your care a girl who
(Page 6)
- had a very unhappy past. Her own mother physically abused her and then she was sexually molested by her father and her brother…
In any event, she came to your house and could not have been in a more vulnerable condition or position. She had latterly been the subject of a court hearing involving her own father and her brother and she had just completed the necessity to give evidence in court about those matters. She placed herself in the care of you and your wife and placed herself in an unusual position of trust, and, quite simply, you chose to abuse that trust."
13 The trial Judge referred to evidence that "K" had been introduced to matters such as pornographic videos, books with pictures and suggestions about vibrators as, in his Honour's words "a deliberate attempt to place this girl in a position where she was likely to be amenable to sexual approaches by you." The learned trial Judge categorised the offences as extremely serious: "... in the circumstances almost as serious as one can imagine" but noted there was no physical abuse connected and no threats.
14 He noted there was no question of remorse. The applicant was 56.
15 The sentence the trial Judge imposed was designed to reflect the extreme breach of trust and the undoubted effect on the complainant. He imposed the following terms of imprisonment:
Count 1 (indecent dealing) - 2 years imprisonment
Count 2 (indecent dealing) - 2 years imprisonment cumulative on count 1
Count 3 - 3 years imprisonment and cumulative on the other terms
Count 4 - 2 years imprisonment cumulative on the other term.
16 The total sentence was a term of 9 years imprisonment and the Judge made a parole eligibility order.
Proceedings at the second trial
17 Some five days later the applicant stood trial on the remaining three counts on the indictment. They were two counts of indecent dealing and one count of indecent recording. All three counts concern a young girl
(Page 7)
- "C" who was "K's" sister. The applicant pleaded not guilty and the trial proceeded before H H Jackson DCJ and a jury.
18 The Crown case was that "C" was fostered out to a family in another town. Because "C" and "K" were close she often went to see "K" and stay overnight on weekends. In due course "C" became the applicant's foster child as well. Count 1 occurred when she was 16 in the bath with the applicant. He started talking to her about her breasts, reached over and touched her nipples.
19 As to count 2, on another occasion in the bath with the applicant, he started talking to her about sexual matters and then touched her vagina.
20 Count 3 was an event which occurred when "C" was dressing in front of the fire in the lounge room, a practice of the family because it was cold. The applicant was fiddling with a video camera. Unbeknown to "C" he video-taped her. After she got dressed he told her to get undressed again so she did and he video-taped her getting dressed again. Again the applicant did not give evidence. He was convicted of all three counts.
21 The applicant was sentenced for the offences against "C" on 11 December 2000. The learned sentencing Judge was well aware of the sentence which had been imposed in relation to "K".
22 The Judge considered a submission by counsel for the applicant that concurrent terms should be imposed. He rejected that submission for these reasons:
"This was another victim, at another time, in circumstances which were clearly not purely ones which arose on the sudden and, which, themselves, were separated in time, between counts 1 and 2 on the one hand and count 3 on the other. The passage of time since, and the state of your health and indeed any other factors going to your credit, such as good prior antecedents or involvement in community work, do not stand against the necessary consequences of that sort of behaviour."
23 The Judge then imposed the following sentences:
Count 1 - 9 months imprisonment
Count 2 - 9 months to be served concurrently with count 1 but cumulatively on the term of 9 years imprisonment previously imposed
(Page 8)
- Count 3 - 6 months cumulatively on the sentence in respect of counts 1 and 2 and cumulatively on the 9 year term.
24 The total term arising from the second series of offences was therefore one of 15 months to be served cumulatively on the term of 9 years. The learned Judge made a parole eligibility order.
25 The total term of imprisonment imposed on the applicant for the offences disclosed in the indictment was a term of 10 years 3 months with parole eligibility.
Grounds of appeal in respect of the first sentence
"1. The sentences imposed by the Learned Sentencing Judge did not represent a proper exercise of the sentencing discretion.
PARTICULARS
- (a) the sentencing approach adopted by His Honour did not accord with that approved by the High Court in Pearce v R (1998) 103 A Crim R 372;
(b) the Learned Sentencing Judge erred in failing to make counts 2 and 3 concurrent sentences;
(c) abandoned
(d) The learned sentencing Judge erred in making a remark to the effect that he should be able to take into account the way the defence was conducted;
2. The total custodial sentence imposed was excessive in all the circumstances of the case."
- Ground 1(a) and (b)
26 The touching of the vagina in respect of count 2 immediately preceded the act of penetration, and on "K's" description, seemed to have been an act which the applicant may have regarded as foreplay before the act of carnal knowledge. A Judge is not always obliged to impose concurrent sentences but in this case there is an overlap between the two offences. The offence disclosed by count 2 is properly to be seen as a precursor to the more serious offence which followed more immediately. It is bound up in the commission of the later offence. The proper
(Page 9)
- approach was to examine the essential criminality of the whole event in the bed. It should have been regarded by the sentencing Judge as substantially the one act of criminality and a concurrent sentence imposed for count 2 with count 3. I would allow the appeal on the grounds 1(a) and (b).
Ground 2
27 The second ground relates to the total sentence.
28 The sentences were at the higher end of the scale having regard to the maximum sentences available.
29 The breach of trust in the circumstances was extreme as the trial Judge noted in the passages to which I have referred. "K" had been placed in his care after being sexualised by abuse from her father and brother.
30 When an adjustment is made to the sentence as outlined above, I am unpersuaded that the term is manifestly excessive.
The second sentence
Grounds of appeal in respect of the second sentence (CCA 272/2000)
"1. The sentences imposed by the Learned Sentencing Judge did not represent a proper exercise of the sentencing discretion.
PARTICULARS
- (a) the Learned Sentencing Judge erred in failing to make the sentence of 15 months concurrent with the 9 year prison sentence to be served by the applicant in respect of other offences;
(b) the learned sentencing Judge erred in failing to have proper regard to the totality principle."
(Page 10)
32 The learned Judge had specific regard to the sentence of 9 years recently imposed on the applicant for offences committed against a different complainant at different times.
33 The Judge did have regard to the effect of totality because he made the sentence in respect of count 2 concurrent with the sentence for count 1. This was a separate and distinct offence. He also expressly noted:
"… you are serving a term of 9 years imprisonment in respect of those [offences committed in respect of the complainant's sister]. So that the Crown agrees, and I agree that there are questions of totality which arise."
34 The learned Judge did not fall into any error in sentencing the applicant.
35 Having regard to the criminality reflected in the entire indictment in any event I do not regard a total sentence of 10 years and 3 months as grossly disproportionate, nor do I regard it as a crushing sentence.
36 The adjustment to the first sentence puts the question of totality beyond argument.
Conclusions
Appeal 271/2000
37 I would allow the appeal, set aside the order that count 3 be served cumulatively on the sentence imposed on count 2 and instead order that the sentence for count 3 be served concurrently with the sentence imposed on count 2. This will result in an effective total sentence of 7 years with parole eligibility.
Appeal 272/2000
38 I would dismiss the appeal.
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