Fullgrabe v The Queen
[2002] WASCA 58
•11 MARCH 2002
FULLGRABE -v- THE QUEEN [2002] WASCA 58
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 58 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:140/2001 | 11 MARCH 2002 | |
| Coram: | MURRAY J STEYTLER J HASLUCK J | 11/03/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | MARK CLEMENT FULLGRABE THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Series of sexual offences Aggregate term of 15 years imprisonment upheld Turns on own facts |
Legislation: | Nil |
Case References: | Jarvis v R (1998) 20 WAR 201 Trescuri [1999] WASCA 172 Woods v R (1995) 14 WAR 341 Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996 Leslie v R, unreported; CCA SCt of WA; Library No 940080; 21 February 1994 Lowe v R (1984) 154 CLR Lowndes v R (1999) 195 CLR 665 Podirsky v R (1990) 3 WAR 128 R v Grein (1989) WAR 178 R v Hough [2002] WASCA 42 R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 Ryan v R (2001) 179 ALR 193 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : FULLGRABE -v- THE QUEEN [2002] WASCA 58 CORAM : MURRAY J
- STEYTLER J
HASLUCK J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Series of sexual offences - Aggregate term of 15 years imprisonment upheld - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal refused
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr P J Hogan
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Andree Horrigan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jarvis v R (1998) 20 WAR 201
Trescuri [1999] WASCA 172
Woods v R (1995) 14 WAR 341
Case(s) also cited:
Johnston v R, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
Leslie v R, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
Lowe v R (1984) 154 CLR
Lowndes v R (1999) 195 CLR 665
Podirsky v R (1990) 3 WAR 128
R v Grein (1989) WAR 178
R v Hough [2002] WASCA 42
R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Ryan v R (2001) 179 ALR 193
(Page 3)
1 MURRAY J: In relation to this matter the points that can be made have, if I may say so respectfully, been very fairly made by Mr Hogan who, in his typical fashion, seeks to give the matter no greater mileage than it may fairly bear. The short description of what occurred in this case is that there were a considerable number of offences committed over a period of about 3 years, all sexual offences against one complainant.
2 As counsel has noted it in the outline, they fall within six groups on six different occasions but they occur, as I say, over an extensive period of time and at a time during which, as I understand the position, the particular complainant, who was a niece of the applicant, was aged between about 9 and about 12. I should say that the offences committed in that set of offences were offences of, firstly, digital penetration but then quickly it would seem progressed to a pattern of offending which involved the commission of offences of cunnilingus, digital penetration and penile penetration on a number of occasions. The other offence before the court was an offence of indecent dealing against another niece, a younger child.
3 The sentences imposed reflect an effort by the court to recognise by cumulative sentences separate acts of offending, but I think also reflect recognition by the court that very shortly the capacity of the court to take that course by the imposition of proper sentences to be cumulatively served in relation to individual offences would be exhausted by what has come to be called the application of the totality principle.
4 That is the principle which comes into play when there are considerable number of offences and which was discussed, perhaps most authoritatively by this court in Jarvis v R(1998) 20 WAR 201 and particularly by Ipp J, who made the point that the rationale behind the application of that principle is the fact that, although the individual sentences might themselves be proportionate to the gravity of the particular crimes committed the severity of a term of imprisonment increases experientially with the increasing length of the term, and that is clearly a principle which very much came into play in this case.
5 Little need be said, in my opinion, of the circumstances of the commission of the offences. There were a number of factors which the learned sentencing Judge took into account and all of them seem to me to be perfectly appropriate factors guiding the exercise of his Honour's discretion.
6 Firstly, it is clear - and there is even now no argument with the fact - that the commission of the offences represented simply the satisfaction of
(Page 4)
- the sexual needs of the applicant by the use of the one child in particular, but the two children for that purpose. As his Honour put it in his sentencing remarks in relation to the child who was the principal victim of the offences, the applicant destroyed her innocence and treated her shamefully.
7 There was a considerable difference in age between the victim and the offender, the offender being a mature man aged between 38 and 41 at the time of the commission of the offences. Perhaps the most serious aspect of the commission of these offences which the court recognised in passing sentence was that the offences constituted a substantial breach of trust. Not only was the applicant the uncle of the victims but he was in loco parentis for a substantial period of the time at least and one can not imagine really a more serious case of offending and motivation of offending than that which I have described.
8 The matters went to trial. There has been no expression of any meaningful remorse. Indeed, the pre-sentence report and the psychological report which was an addendum to the pre-sentence report made that point and reported to the court that the best that could be said for the applicant at that time was that he was, even then, not accepting full responsibility for his actions despite his conviction.
9 It appeared indeed that he denied the offending against the second child. So far as the principal victim, if I may describe her in that way, was concerned it was said even in the psychological report that the applicant had only begun to admit his sexual offending. One gets the picture, if I may say so, of a reluctant acceptance because it was obvious that that was a matter of particular significance to the pre-sentence reporters rather than a genuine realisation or even dawning of genuine realisation of the severity and the awful nature of the offences that he had committed.
10 Even at the time of those reports he continued to minimise his role, describing it as one of a rather passive kind, and he spoke then of the child's active participation, apparently taking the view that the child enjoyed what occurred. As the psychologist in the report observes he appeared to lack both victim empathy and any understanding of his grooming of his victim or the impact his behaviour has had upon her. There was in my opinion in the grudging acknowledgment of sexual deviancy and the criminal nature of his behaviour, no mitigation of any substance to be found, nor I think was there in the fact that he lacked previous convictions for any such offences in the past.
(Page 5)
11 This Court of course looks at the matter in the context of an exercise of discretion on the part of the learned trial Judge. His Honour imposed sentences for the first offence of digital penetration of 3 years imprisonment, then in relation to the second group of offences, a sentence of 3 years imprisonment was imposed in respect of the offence described as cunnilingus, whereas the offence of penile penetration on that occasion attracted, as it did on the other occasions where it occurred, a sentence of 4 years imprisonment and the digital penetration offences attracted sentences of 3 or 2 years imprisonment.
12 It seems to me, with respect to his Honour the sentencing Judge, that his Honour took a more serious view and properly took a more serious view of the offences committed earlier which broke down the innocence of the child and perverted the relationship between them. And so in relation to that second group of offences his Honour imposed cumulative sentences of 3 years imprisonment for that offence described as cunnilingus and 4 years cumulative imprisonment for the offence of penile penetration which occurred then.
13 Similar offences of cunnilingus and digital penetration on the third occasion received cumulative sentences of 2 years imprisonment in each case and thereafter, if I may put the matter clearly, it seems to me from his Honour's remarks that he found an incapacity to impose any further cumulative penalties despite the fact that there were a further three separate occasions where offences occurred and where cumulative sentences might well on the application of ordinary principles have been warranted. So far as the offences committed against that particular victim are concerned, therefore, the sentences imposed aggregated a period of 14 years imprisonment. His Honour, properly in my opinion, imposed for the indecent dealing with the other child a sentence of 1 year imprisonment cumulative on the term of 14 years.
14 I can see no capacity to respond positively to the first ground that the sentences imposed were manifestly excessive in their aggregate in that the Judge failed to consider the applicant's prior good antecedents and lack of similar criminal history.
15 I turn to the second ground of the application that the sentences were manifestly excessive having regard to cases of a similar nature. Two authorities are principally relied upon in this regard being both of them authorities where statements of a general kind in relation to the sort of sentences which particular cases of this general kind may attract.
(Page 6)
16 The first is the case of Woods v R (1995) 14 WAR 341, and the statements upon which particular reliance is placed are particularly those of Anderson J delivering the principal reasons of the Court of Criminal Appeal at pages 354 and 359 where a number of cases are discussed and his Honour mentions a range of what his Honour describes as very heavy sentences in the course of his reasons. Subsequently in the case of Trescuri [1999] WASCA 172, delivered on 10 September 1999, there are similar observations by the Court, again particularly if I may say so by Anderson J, on that occasion with the agreement of Ipp and White JJ. So far as such a range of sentences is concerned it is worthy of note in this case that in my opinion in neither of those cases was the range being spoken of in other than generally applicable anecdotal terms.
17 It has long been recognised that there are a multitude of different circumstances which will affect the sentences proper to be imposed in particular cases of sexual offences against children and that it is unhelpful, generally speaking, to refer to sentences in these cases in terms of what range of sentences might be attracted. It was not, I am sure, reading the decisions of Anderson J to which I have referred, his Honour's intention or the intention of those members of the Court who expressed agreement with his Honour's reasons on those occasions, to limit or otherwise impose a tariff in relation to sentencing for sexual offences in cases of this kind and indeed when one reads his Honour's remarks, it seems to me that it is perfectly evident that that is the case.
18 The sentences aggregating a period of 15 years imprisonment in this case might by other sentencers be regarded as heavy, but they seem to me to be sentences in respect of which it is impossible to say that they fell outside what may be an acceptable range of sentence for these offences committed in the circumstances that I have briefly described.
19 It seems to me that this is a case in which it is important for this Court to remind itself that it is sitting in review of a discretionary judgment by way of sentence. His Honour the sentencing Judge has referred to appropriate considerations in relation to the exercise of his discretion. His sentencing was thoughtful and in my respectful opinion well applied. I am unable for my part to consider that the sentencing discretion has miscarried in such a way as would entitle this court to interfere. I would dismiss the application.
20 STEYTLER J: I agree. There is nothing I wish to add.
21 HASLUCK J: I agree and there is nothing I wish to add.
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