GGM v The State of Western Australia [No 2]
[2011] WASCA 259
•29 NOVEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GGM -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2011] WASCA 259
CORAM: McLURE P
MAZZA J
HEARD: 17 OCTOBER 2011
DELIVERED : 29 NOVEMBER 2011
FILE NO/S: CACR 83 of 2011
BETWEEN: GGM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BRADDOCK DCJ
File No :IND 13 of 2010
Catchwords:
Criminal law - Leave to appeal against sentence - Five counts of sexual penetration of a child under the age of 13 years - Whether first limb of totality principle infringed
Legislation:
Criminal Appeals Act 2004 (WA), s 27(2)
Result:
Leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
GGM v The State of Western Australia [2011] WASCA 248
McGarry v The Queen [1999] WASCA 276
Roffey v The State of Western Australia [2007] WASCA 246
Wilson v The State of Western Australia [2010] WASCA 82
McLURE P: I agree with Mazza J
MAZZA J: This is an application for leave to appeal against sentence. An application for leave to appeal against conviction has been refused: GGM v The State of Western Australia [2011] WASCA 248.
The appellant was tried before Braddock DCJ and a jury in the District Court on an indictment alleging 12 offences of a sexual nature against three children who were, at the time, under the age of 13 years. The jury convicted him of five counts of sexual penetration of a child under the age of 13 years. The offences of which the appellant was convicted occurred between 1994 and 1999, and involved two complainants, who were sisters, CB and NB. The appellant was convicted of four offences relating to CB and one offence relating to NB.
On 13 May 2011, Braddock DCJ sentenced the appellant as follows:
| Count | Offence | Maximum Statutory Penalty | Sentence | Concurrency/ Accumulation |
| 1 | Sexual penetration of a child under the age of 13 | 20 years | 3 years 6 months | Head Sentence |
| 3 | Sexual penetration of a child under the age of 13 | 20 years | 3 years 6 months | Concurrent |
| 4 | Sexual penetration of a child under the age of 13 | 20 years | 3 years 6 months | Cumulative |
| 5 | Sexual penetration of a child under the age of 13 | 20 years | 3 years 6 months | Concurrent |
| 9 | Sexual penetration of a child under the age of 13 | 20 years | 3 years 6 months | Concurrent |
The total effective sentence was 7 years' imprisonment.
The appellant does not complain of the individual sentences that were imposed. The one proposed ground of appeal alleges that the total effective sentence infringed the totality principle.
Leave to appeal cannot be granted unless the appellant demonstrates that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act 2004 (WA). This test must be judged in light of the well‑known appellate principles which were conveniently set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need to repeat those principles here.
The offending
CB and NB were born in 1989 and 1991, respectively. After the separation of their parents, CB lived with her father and NB with her mother. Nevertheless, NB would regularly stay with her father and sister on holidays and at other times.
CB and NB's father was a heavy drinker. He and the appellant met at a hotel and became good friends. The appellant was a frequent visitor to the father's home, to the point where, it was said in the trial, he became 'part of the furniture'. He came to know both children well. They each referred to him by a nickname. The father's alcohol problem was severe. Because of it, he was incapable of properly looking after his children.
Offences relating to CB
It was accepted that the offences against CB were representative of a course of conduct which the appellant engaged in over a period of years.
CB testified about an occasion before she started school where, at a barbecue, the appellant took her out into the backyard on a pretext and asked her to lie down on a sheepskin rug. CB recalled the appellant saying, 'Look at the pretty stars' or words to that effect. The appellant then removed her underwear and committed an act of cunnilingus: count 1.
Later, when she was about the same age, the appellant was taking her to the pub when they diverted into a vacant block of land. Once again he removed her underwear, and although she tried ineffectually to resist, the appellant committed an act of cunnilingus on her: count 3.
Later, when CB was in year 3, the appellant committed another act of cunnilingus while CB lay in her bed at night asleep, which awoke her: count 5.
The final event for which the jury convicted the appellant in relation to CB occurred in 1999 when she was around 10 years of age. The complainant said that she was awoken by the appellant rubbing her body. She rolled away from him. However, some time later, he came back, removed her clothing and digitally penetrated her vagina. The act hurt her enough to make her cry: count 9.
Offence in relation to NB
NB recalled an occasion when she was about 4 or 5 years old, when she was in bed with her sister. The appellant entered the bedroom and began tickling her in a non‑offensive way. After a time, the appellant removed her underwear and committed an act of cunnilingus: count 4.
The appellant's antecedents
At the time of sentence, the appellant was 51 years of age. During the period of his offending, and for some years before that, he had been abusing alcohol. Despite seeking some rehabilitation in the 1980s, the problem was ongoing during the period of his offending.
The appellant had a relevant criminal history. In 1987, he pleaded guilty to two offences of indecently dealing with a child under the age of 16 years. He was dealt with by the Children's Court by way of fines. The offences related to him touching two girls on their genitals while he was sleeping on a fold‑out bed with them. Despite his pleas of guilty, the appellant denied that he had committed the offences when interviewed for the psychological report ordered by her Honour.
Since his early teenage years, the appellant has suffered from erectile dysfunction.
The authors of the court‑ordered psychiatric and psychological reports each noted that the appellant, despite his convictions, continued to deny offending against CB and NB. Each noted his history of alcohol abuse. Each noted that the appellant claimed to have, since the commission of the offences, reduced his drinking. The author of the psychological report assessed the appellant as having a low to moderate risk of reoffending.
Her Honour was provided with references which showed that he had support from his family and that he had been a good employee.
There is nothing in any of the material before her Honour which indicated any degree of remorse or insight into his offending.
Victim impact statement
CB provided a victim impact statement. She set out how the offending has affected her relationship with her father and her partner. It is clear that the offending has had a substantial and ongoing effect upon her personally.
Her Honour's sentencing remarks
Her Honour accepted that the appellant's offending did not involve any force or additional degradation or corruption of the complainants. However, the absence of these features, she said, did not detract from the seriousness of the offending. Her Honour had regard to the young age of the complainants and their vulnerability. She made appropriate reference to the need to protect young children and to provide general deterrence. Her Honour described the offending with respect to CB as being 'repeated and predatory abuse' by a person who was a family friend.
Her Honour made express reference to the totality principle. She said:
But for the principles of totality I would have had to consider in relation to [CB] a different manner of accumulation of these sentences. It is not put in any way the determination of concurrency is to downplay the length of time that you abused her [sic], but to make any of those terms cumulative upon each other and cumulative upon the term I impose for [NB] would simply be too much: ts 513.
The totality principle and the resolution of the appeal
There is no need, in this case, to examine in detail the nature of the totality principle. It comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The second limb, a breach of which is not alleged in this case, is that the court must not impose a crushing sentence. That is, a sentence which destroys any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25]. The practical effect of the totality principle is, ordinarily, to arrive at an aggregate sentence that is less than that which would be arrived at simply by adding up all the terms appropriate for the individual sentences.
The appellant's submissions concentrated on three arguments. First, her Honour gave insufficient weight to the time which had elapsed since the commission of the offences, and to what was said to be his rehabilitation. Second, the appellant's offending was not as serious as in some other cases because he was not related to the complainants and none of the offences involved penile penetration. Third, the appellant's criminality was somewhere between a 'low to mid range of seriousness' for such type of offending and that the sentence imposed by her Honour was of a length more appropriate to the upper end of an appropriate range.
The material before her Honour showed that the appellant had not offended since (save for irrelevant driving convictions sustained in 2002), had obtained regular employment and had reduced his alcohol intake. To this extent it might be said that, in the years that had elapsed since the commission of the offences, there had been some rehabilitation. However, against this, the appellant continued to not only deny the offences for which he had been convicted, but also the offences to which he had pleaded guilty in 1987. The appellant was not remorseful and had no insight into his offending. The appellant posed, in the opinion of the author of the psychological report, a low to moderate risk of reoffending. In these circumstances, the appellant's rehabilitation, such as it was, did not justify the imposition of a lesser sentence.
Although the appellant did not commit an act of penile penetration, the acts of cunnilingus and the digital penetration were particularly degrading and intrusive to such young complainants and represented serious criminal conduct.
The appellant cited a large number of cases in his written submissions in order to support the submission that the total effective sentence imposed here offended the totality principle. Those cases are set out in annexure A of these reasons. While it is relevant to consider sentences imposed in other cases to ensure broad consistency, it must always be borne in mind that each case must be decided having regard to its own facts and circumstances. Moreover, as has been observed in many cases, there is no tariff for offences of a sexual nature.
There is no need to embark upon a detailed analysis of the many cases cited by the appellant. Each case (except McGarry v The Queen [1999] WASCA 276) concerns offending where there was at least one act (and often more) of sexual penetration accompanied by other offences, mainly indecent dealing. The facts and circumstances of the cases vary considerably. Most of them involve sentences imposed after pleas of guilty. As a matter of fact, ordinarily offences of sexual penetration of young children result in significant terms of immediate imprisonment to serve the purposes of protecting children and providing general deterrence. I am satisfied that, although the total overall sentence in the present case is high, it is not inconsistent with total sentences customarily imposed.
I do not accept that the appellant's overall offending fell somewhere between the low to mid‑range of seriousness. It was more serious than this. It involved the sexual penetration of two very young girls who were particularly vulnerable by reason of their father's inability to protect them. The offending in relation to CB was representative of a course of conduct which occurred over a period of approximately 5 years. Substantial ongoing harm has been caused to her. The appellant took advantage of the close friendship he had with the complainants' father to abuse the complainants. As the offending was upon two complainants and the offending occurred at different times, some accumulation was appropriate. Her Honour expressly referred to and gave effect to the totality principle. Having regard to all the circumstances of the case, including the mitigating factors, I do not regard the total sentence imposed by her Honour as having breached the first limb of the totality principle. In my opinion, the total sentence of 7 years was within a sound exercise of her Honour's discretion. The proposed ground of appeal does not have a reasonable prospect of success. The appeal must be dismissed.
Orders
I would make the following orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.
ANNEXURE A
B v The Queen [2002] WASCA 236
Batty v The Queen (Unreported, WASCA, Library No 980518, 14 September 1998)
Bishop v The Queen [2003] WASCA 79
Bosworth v The Queen [2004] WASCA 43
Boudville v The Queen [2001] WASCA 133
Carter v The Queen [2003] WASCA 159
Chinnery v The Queen [2000] WASCA 295
D v The Queen [2003] WASCA 33
Germain v The State of Western Australia [2004] WASCA 293
GHS v The State of Western Australia [2006] WASCA 42
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
HAS v The State of Western Australia [2005] WASCA 29
Hine v The State of Western Australia [2010] WASCA 216
King v The Queen [2001] WASCA 103
KMB v The State of Western Australia [2010] WASCA 212
KS v The State of Western Australia [2011] WASCA 85
Lawrence v The State of Western Australia [2005] WASCA 14
Liddington v The State of Western Australia [2005] WASCA 60; (2005) 152 A Crim R 502
Little v The Queen [2000] WASCA 87
McGarry v The Queen [1999] WASCA 276
PP v The State of Western Australia [2004] WASCA 144
R v Griffiths [1999] WASCA 23
R v Leggett [2000] WASCA 327
Rogers v The Queen [2004] WASCA 147
S v The Queen [2004] WASCA 113
Schriever v The State of Western Australia [2008] WASCA 133
Stephenson v The Queen [2001] WASCA 98
The State of Western Australia v ABM [2004] WASCA 90
The State of Western Australia v Prince [2011] WASCA 22
TJD v The State of Western Australia [2004] WASCA 310
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
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