GHK v The State of Western Australia
[2014] WASCA 19
•29 JANUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GHK -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 19
CORAM: BUSS JA
MAZZA JA
HALL J
HEARD: 10 SEPTEMBER 2013
DATE OF
FINAL WRITTEN
SUBMISSIONS : 23 SEPTEMBER 2013
DELIVERED : 29 JANUARY 2014
FILE NO/S: CACR 42 of 2013
BETWEEN: GHK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 392 of 2011
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty on 24 counts of sexual offending against children - Offences committed between 1966 and 1980 - Six victims - Appellant aged 73 at the time of sentencing - Total effective sentence of 16 years' imprisonment - Whether totality principle infringed - Whether primary judge erred in finding that the offending was in the worst category
Legislation:
Criminal Code (WA), s 182, s 183, s 185, s 189(2), s 197 (all repealed)
Sentencing Act 1995 (WA), s 6(2), s 9AA
Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Leave to appeal on ground 2 refused
Appeal allowed
Total effective sentence imposed by the primary judge set aside
The primary judge's orders in relation to accumulation and concurrency of the individual sentences set aside
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Mr H C Quail
Respondent: Ms S H Linton
Solicitors:
Appellant: David Manera
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
B v The Queen[2002] WASCA 236
Bensegger v The Queen [1979] WAR 65
Braham v The Queen (1994) 116 FLR 38
CJF v The State of Western Australia [2012] WASCA 69
ERA v The State of Western Australia [2013] WASCA 163
GHS v The State of Western Australia [2006] WASCA 42
GMS v The State of Western Australia [2009] WASCA 107
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
HFM v The State of Western Australia [2012] WASCA 217
KMB v The State of Western Australia [2010] WASCA 212
LSC v The Queen [2003] WASCA 303
M v The State of Western Australia [2006] WASCA 256
MAS v The State of Western Australia [2012] WASCA 36
McLaughlin v The State of Western Australia [2012] WASCA 204; (2012) 224 A Crim R 134
MMC v The State of Western Australia [2012] WASCA 187
MPD v The State of Western Australia [2008] WASCA 57
PDS v The State of Western Australia [2006] WASCA 20
Porter v The Queen [2008] NSWCCA 145
PP v The State of Western Australia [2004] WASCA 144
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Tait (1979) 46 FLR 386
R v Webb [1971] VR 147
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
RDC v The State of Western Australia [2012] WASCA 16
Smith v The State of Western Australia [2010] WASCA 176
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414
The State of Western Australia v FJG [2012] WASCA 206
Truscott v The State of Western Australia [2007] WASCA 62
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341
BUSS JA: The appellant appeals against sentence.
The appellant was convicted, on his pleas of guilty in the District Court, on 24 counts of sexual offending against children. The offences were committed between about 1966 and 1981. There were six victims. Four were his own biological children (two boys and two girls). The others were a girl who was a ward of the State and a girl who was a friend of one of his daughters.
On 1 February 2013, Scott DCJ imposed a total effective sentence of 16 years' imprisonment, backdated to 19 September 2011. A parole eligibility order was made.
The facts and circumstances of the offending, the individual sentences, the appellant's personal circumstances and antecedents, the expert reports and the sentencing judge's sentencing remarks
The facts and circumstances of the offending, the individual sentences, the appellant's personal circumstances and antecedents, details of the expert reports and a summary of the sentencing judge's sentencing remarks are set out in the reasons of Hall J. I will not repeat them except to the extent necessary to explain my reasons.
The grounds of appeal
Initially, the appellant relied on one ground of appeal (ground 1), which reads:
1.The learned sentencing judge failed to give proper effect to the totality principle in imposing an aggregate sentence of 16 years' imprisonment.
Particulars
1.1Whilst each sentence taken individually was appropriate, the aggregation of the sentences was not a just and appropriate measure of the offender's total criminality;
1.2Further, and also in the alternative, the total sentence was crushing and destroyed any expectation of useful life after release for the offender.
On 5 May 2013, Mazza JA granted leave to appeal on that ground.
After the hearing of the appeal, the appellant applied for leave to rely on an additional, alternative, ground of appeal (ground 2), as follows:
Alternatively, the learned sentencing judge erred in law in finding that the offending was in the 'worst category' for the purposes of The State of Western Australia v BLM.
Particulars
2.1The finding was not open as the court did not find that any particular offence justified the imposition of the statutory maximum penalty or something approaching it;
2.2In making the finding the court had regard only to general deterrence and the Dempsey factors and failed to take account of the circumstances of the offender.
The merits of ground 1
A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred 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 (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. The second limb of the principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. These propositions are well-established by the case law.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 ‑ 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] ‑ [35] (Redlich JA, Neave JA agreeing).
However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.
In Smith v The State of Western Australia [2010] WASCA 176, I reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. I noted (McLure P & Mazza J agreeing):
First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public [68].
The primary sentencing considerations for offences of the kind committed by the appellant are punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
By s 6(2)(b) of the Sentencing Act 1995 (WA), the seriousness of an offence must be determined by taking into account, amongst other things, the circumstances of the commission of the offence, including 'the vulnerability of any victim of the offence'.
At common law, a sentencing judge may take into account, in determining sentence, any detrimental, prejudicial or deleterious effect that may have been produced on the victim by the commission of the offence. See R v Webb [1971] VR 147, 151 (Winneke CJ, Pape & Lush JJ); Porter v The Queen [2008] NSWCCA 145 [54] (Johnson J, Bell JA & McCallum J agreeing). See also, in relation to victim impact statements, s 24 to s 26 of the Sentencing Act.
There is no tariff for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69] (Steytler P, McLure JA agreeing).
I have considered a number of cases with at least some features comparable to the appellant's offending. See, in particular, GHS v The State of Western Australia [2006] WASCA 42; KMB v The State of Western Australia [2010] WASCA 212; CJF v The State of Western Australia [2012] WASCA 69; SWD v The State of Western Australia [2012] WASCA 76; MMC v The State of Western Australia [2012] WASCA 187; The State of Western Australia v FJG [2012] WASCA 206; ERA v The State of Western Australia [2013] WASCA 163; and the decisions referred to in those cases.
The highest total effective sentences (in post‑transitional terms) for child sex offending in this State appear to have been imposed in GHS (14 years), KMB (14 years 6 months), SWD (14 years) and ERA (16 years). The offenders in GHS, KMB, SWD and ERA were convicted after trial. I reviewed GHS, KMB and SWD in my reasons in ERA.
In the present case, the extremely serious nature of the appellant's offending is apparent from the following:
(a)The appellant offended over a period of 15 years between about 1966 and 1981.
(b)His offending involved numerous acts of sexual violation against six children.
(c)The offences ranged in seriousness from indecent dealings to multiple offences of sexual penetration, including digital/vaginal penetration of the female victims, oral/vaginal penetration of the female victims, penile/oral penetration of the female victims, penile/vaginal penetration of the female victims, masturbation in the presence of the victims, and attempted penile/anal penetration of one of the male victims.
(d)All of the victims were vulnerable. When the offences were committed the victims ranged in age from 4 years to 13 years. The female victim who was a ward of the State was especially vulnerable.
(e)The appellant occupied a position of power and authority over his children and the female victim who was a ward of the State. The other female victim was a friend of one of his daughters who had become a regular visitor.
(f)The appellant attempted (unsuccessfully) to persuade one of his daughters to bring other young girls to their home.
(g)The appellant exposed several of the victims to pornographic material.
(h)The appellant ensured that each victim was aware of the abuse being committed against the others. Some of the counts involved the appellant abusing each of his daughters simultaneously and in each other's presence. Also, he committed sexual acts against his daughters in the presence of the female victim who was a friend of one of them.
The offences against the female victims were not isolated incidents. They were representative of an ongoing course of conduct. The appellant cannot be, and was not being, punished for offences with which he was not charged. However, the appellant was not entitled to any mitigation on the basis that his moral culpability for the counts in the indictment was diminished because his behaviour on those occasions was uncharacteristic or an aberration. See MMC [61] (Buss JA, Mazza JA agreeing).
The material before the sentencing judge included victim impact statements from the victims. The statements reveal the very destructive consequences of the appellant's criminal behaviour upon the lives of each of the victims. Some of the victims have suffered severe dysfunction including descent into drug and alcohol abuse, psychological trauma, suicide attempts and relationship difficulties.
The appellant's offending was not impulsive. It involved some planning and premeditation. He was persistent and merciless. The appellant sacrificed the innocence, youth and well-being of the victims in the relentless pursuit of his sexual perversion.
There was limited mitigation apart from the appellant's late pleas of guilty.
Dr Mark Hall, a consultant forensic psychiatrist who examined the appellant, said there was no evidence of psychosis or formal thought disorder. The appellant did not suffer from a serious mental illness or cognitive impairment. Dr Hall said the nature and extent of the appellant's abuse of the victims readily suggested the presence of paedophilia.
His Honour accepted Dr Hall's view that the appellant had not shown any victim empathy. There was no remorse or contrition. He lacked insight into his offending and its consequences.
The sentencing judge took into account the appellant's late pleas of guilty. The pleas conferred a benefit on the State, the victims and other witnesses. Pursuant to s 9AA of the Sentencing Act, his Honour allowed a discount of 15% on the individual sentences he would otherwise have imposed if the appellant had been convicted after trial and there were no mitigating factors.
His Honour dealt with the appellant on the basis that he was a first offender. However, as his Honour noted, it is not uncommon for those involved in child sex offending not to have a prior criminal record.
The appellant was born on 19 February 1939. He was aged between 27 and 41 when the offending occurred. He therefore did not have the mitigation of youth.
When the appellant was sentenced he was aged 73. He suffered from some ill health, in particular, ischaemic heart disease, Paget's disease and arthritis. The sentencing judge took into account the appellant's advanced age and his ill health, but his Honour was not satisfied that the ill health could not be 'accommodated by proper medical treatment in gaol' (ts 174).
The sentencing judge noted that the period of offending had ceased in 1980 and the appellant had not reoffended. His Honour took that factor into account, but he was of the view that it did not afford any significant mitigation. The appellant had not undertaken any counselling or treatment in relation to his offending, and he had not taken any steps to assist the victims deal with their damaged lives. As his Honour noted, the offending ceased when there were no more victims readily accessible to the appellant.
His Honour accepted that personal deterrence was not an important sentencing factor. This was not because the appellant had taken steps towards his rehabilitation, but because of his advanced age and the absence of any realistic opportunity for future offending.
The primary sentencing considerations were condign punishment, general deterrence and the protection of vulnerable children.
The cases most comparable with the present case, for the purposes of ensuring broad consistency in sentencing outcomes, are GHS, KMB, SWD and ERA. It is significant that, as I have mentioned, the offenders in those cases were convicted after trial. By contrast, the present appellant pleaded guilty, although, as I have noted, they were late pleas. The objective seriousness of the offending conduct in GHS, KMB, SWD, ERA and the present case is reasonably comparable. However, the present appellant offended against six victims whereas there were two victims in GHS, one victim in KMB, two victims in SWD and four victims in ERA. The duration of the offending in the present case was about 15 years whereas the offending period in GHS was about eight years, the offending period in KMB was about 10 years, the offending period in SWD was about four years and the aggregate of the offending periods in ERA was about five years. The present appellant was aged 73 when sentenced whereas the offender in GHS was 56, the offender in KMB was 44, the offender in SWD was 61, and the offender in ERA was 64. In the present case personal deterrence was not an important sentencing factor whereas it was a sentencing factor of importance in ERA. In SWD there was no confidence that there was no real risk of the offender reoffending. In the present case the appellant was sentenced on the basis that he was a first offender whereas the offender in ERA had a prior conviction for incest with his daughter in 1983 and 1984 when she was 10 or 11. The victims of the offending in ERA were his nieces during 1974 ‑ 1975 and his granddaughters during 2005 ‑ 2008.
In my opinion, after taking into account the maximum penalties, the circumstances of the offending (including the vulnerability of the victims) viewed as a whole, the total effective sentences imposed in prior cases with at least some features comparable to the appellant's offending, the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind, the appellant's personal circumstances and antecedents, and all other relevant sentencing factors including the pleas of guilty, the total effective sentence of 16 years' imprisonment was beyond the range open on a proper exercise of the sentencing discretion. The total effective sentence does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances and all relevant sentencing factors. I am satisfied that the first limb of the totality principle was infringed.
As to the second limb of the totality principle, the appellant will be aged 86 when he becomes eligible for parole and he will be 88 upon completion of the total effective sentence imposed by the sentencing judge.
His Honour took into account the appellant's age and his state of health in determining the total effective sentence.
The provisions of the Prisons Act and the Prisons Regulations require that proper medical treatment be made available to prisoners and, if necessary, an absence permit may be given to enable their treatment in an appropriate institution in the general community.
I accept, however, that there is a reasonable prospect (if not a likelihood) that the appellant will die in custody.
It is unfortunate, from the appellant's perspective, that the extremely serious nature of his overall offending, the necessity for condign punishment, and the importance of general deterrence very substantially reduced the extent to which humanitarian considerations, based on the appellant's age and his ill health, could be accommodated in arriving at the total effective sentence. I am not persuaded that the total effective sentence of 16 years' imprisonment infringed the second limb of the totality principle.
Ground 1 has been made out in part.
The merits of ground 2
The maximum penalty for an offence is reserved for cases falling within the worst category of cases. In Bensegger v The Queen [1979] WAR 65, Burt CJ explained the true rule in relation to the use of the maximum penalty:
A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was (68).
See also Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson & Toohey JJ). Cases falling within the worst category, for sentencing purposes, are rare.
In R v Tait (1979) 46 FLR 386, Brennan, Deane and Gallop JJ adopted Burt CJ's statement of the true rule in relation to the use of the maximum penalty for an offence (398). Their Honours added that this rule requires that 'both the nature of the crime and the circumstances of the criminal be considered in determining whether the case is of the worst type' (398).
The approach in Bensegger and Tait is consistent with s 6(2) of the Sentencing Act, which provides that the seriousness of an offence must be determined by taking into account the statutory penalty, the circumstances of the commission of the offence (including the vulnerability of any victim), any aggravating factors and any mitigating factors. In a particular case, an offender's personal circumstances and antecedents may be a mitigating factor.
In The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, the majority (Wheeler & Pullin JJA, Owen JA agreeing) said, in summary, that the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA), which repealed cl 2 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), had the following effects:
(1)In cases falling within the 'worst category' it enables the imposition of the statutory maximum penalty, or something approaching it. Whether, in any particular 'worst category' case, a sentencing judge will be required to impose a penalty at or near the statutory maximum will depend not upon the Amendment Act, but upon established sentencing principle.
(2)In cases not falling within the worst category, and where there is an established range of sentences capable of affording comparison, it requires a sentencing judge to have regard to the minimum terms which would have been required to have been served under that range of sentences, and to tailor the sentence to be imposed so as to avoid unjustifiable disparity in respect of the minimum custodial period.
(3)It facilitates the development of sentencing ranges which change over time, by reason of factors such as prevalence or other relevant matters.
(4)Where new offences are created, it makes it clear that the court is not to discount sentences imposed in respect of those offences by one-third.
This list may not be exhaustive, but it is sufficient for the purposes of the present case [43]. (original emphasis)
Earlier in their reasons, the majority in BLM stated that, in the worst category of cases, the Sentencing Legislation (Transitional Provisions) Amendment Act permits a sentencing judge to impose a sentence at, or close to, the maximum penalty 'without adjustment so as to ensure comparability with previous minimum custodial terms' [42].
Four observations may be made about the passages I have reproduced from the majority's reasons in BLM. First, their Honours were referring to the imposition of a sentence at or close to the maximum penalty for an individual offence. They were not dealing with the imposition of a total effective sentence for multiple offences in the context of the totality principle or otherwise. Secondly, if an individual offence is characterised by a sentencing judge as falling within the worst category, the sentencing judge will be entitled, subject to the proper exercise of his or her discretion, to impose the maximum penalty or something approaching it for that offence. Thirdly, whether, in a particular case, the sentencing judge will be required to impose the maximum penalty, or something approaching it, for an individual offence within the worst category, will depend on the application of settled sentencing principles to the facts and circumstances of the individual offence and the personal circumstances and antecedents of the offender. Fourthly, the sentencing judge may, in a particular case, subject to the proper exercise of his or her discretion, impose the maximum penalty or something approaching it for an individual offence within the worst category, notwithstanding that the sentence is outside any previously established sentencing range.
In the present case, the sentencing judge said the appellant's offending was in 'the worst category of offending of this nature' (ts 177). It is apparent, when that comment is examined in the context of the sentencing remarks as a whole, that his Honour was referring to the overall offending and not to any individual offence. His Honour was emphasising the egregious nature of the appellant's criminal conduct as a whole. The approach mandated by the majority in BLM, in the case of an individual offence falling within the worst category, was not applicable.
The appellant does not challenge any of the individual sentences imposed by his Honour. In any event, none of them is outside the range of sentences established by the cases.
In the absence of an express error, the appellant's challenge to his total effective sentence is to be determined by reference to the totality principle; in particular, whether error in the exercise of the sentencing judge's discretion is to be inferred from the sentencing outcome, after taking into account all of the factors to which I have referred at [8] above in describing the first and second limbs of the principle. In other words, whether this court should infer that his Honour's discretion miscarried must be determined by applying the totality principle to the facts and circumstances of the overall offending and the personal circumstances and antecedents of the appellant and not by an assessment of the appropriateness of his Honour's characterisation of the overall offending as within the worst category.
Finally, in relation to ground 2, I am not persuaded that, on a fair reading of the sentencing remarks as a whole, the sentencing judge failed to take into account the personal circumstances and antecedents of the appellant in deciding upon the total effective sentence. His Honour made reasonably extensive reference to those matters in the course of his remarks. It was unnecessary for him to repeat his earlier comments or refer to them again when he applied the totality principle and decided upon the total effective sentence.
Ground 2 is without merit.
The resentencing of the appellant
I would allow the appeal on the basis of ground 1. Leave to appeal on ground 2 should be refused.
This court has the material necessary to resentence the appellant.
The appellant did not challenge any of the individual sentences imposed by the sentencing judge. Those sentences should stand. However, the total effective sentence, and his Honour's orders in relation to the accumulation and concurrency of the individual sentences, should be set aside.
In my opinion, the overall criminality of the appellant's offending would be properly marked, and all relevant sentencing principles would be satisfied, by a total effective sentence of 14 years' imprisonment. I have arrived at this outcome after taking into account all of the facts and circumstances of the offences, viewed in their entirety, and after having regard to the total effective sentences imposed in reasonably comparable cases, the appellant's personal circumstances and antecedents and his late pleas of guilty. Section 9AA of the Sentencing Act applies only to the imposition of individual sentences.
The new total effective sentence of 14 years' imprisonment should be achieved as follows:
(a)the individual sentences for counts 2 (2 years), 15 (4 years 6 months) and 18 (3 years) should be served cumulatively on each other and cumulatively on the individual sentence for count 4 (4 years 6 months); and
(b)the other individual sentences should be served concurrently with each other and concurrently with the individual sentence for count 4.
The new total effective sentence is to be taken to have taken effect on 19 September 2011. The appellant remains eligible for parole. He will be eligible to be considered for release on parole as from 19 September 2023.
MAZZA JA: I agree with Buss JA.
HALL J: On 1 February 2013 the appellant was sentenced in the District Court to a total effective sentence of 16 years' imprisonment for
24 serious sexual offences. He was granted leave to appeal on the ground that the sentence failed to give proper effect to the totality principle. Following the hearing of the appeal an application was made to add a second ground, namely that the sentencing judge erred by finding that the offending was in the 'worst category'.
The offences of which the appellant was convicted were committed between 1966 and 1980. They involved six complainants, four of his own biological children (two sons and two daughters), a girl who was a ward of the State and a girl who was a friend of his daughter. The offending continued over a 15 year period. The offences in relation to the female complainants were representative of a course of conduct.
The offences of which the appellant was convicted and the sentences imposed are set out in the following table:
| Count | Offence | Victim/Age | R/ship | Maximum Penalty | Sentence imposed |
| 1 | Indecently dealt with child under 13 years: s 189(2) Criminal Code (WA) ('Code') | C - 7-8 years | Ward | 7 years | 2 years 6 months concurrent |
| 2 | Indecently dealt with child under 13 years: s 189(2) Code | C - 7-8 years | Ward | 7 years | 2 years concurrent |
| 3 | Indecently dealt with child under 13 years: s 189(2) Code | C - same time as 2 | Ward | 7 years | 2 years 6 months concurrent |
| 4 | Unlawful carnal knowledge of child under 13 years: s 185 Code | C - same time as 2 | Ward | 20 years | 4 years 6 months cumulative |
| 5 | Unlawful carnal knowledge of child under 13 years: s 185 Code | C - 7-8 years | Ward | 20 years | 4 years 6 months concurrent |
| 6 | Attempted carnal knowledge against the order of nature: s 182 Code | K - 11-12 years | Son | 7 years | 18 months cumulative |
| 7 | Incited indecent dealing by child under 14 years: s 183 Code | M - 8 years | Son | 7 years | 2 years 6 months cumulative |
| 8 | Indecently dealt with child under 13 years: s 189(2) Code | S - 4-5 years | Daughter | 7 years | 2 years concurrent |
| 9 | Incited indecently dealing by child under 13 years: s 189(2) Code | S - 5-6 years | Daughter | 7 years | 2 years 6 months concurrent |
| 10 | Incited indecently dealing by child under 13 years: s 189(2) Code | S - same time as 9 | Daughter | 7 years | 2 years 6 months concurrent |
| 11 | Indecently dealt with child under 13 years: s 189(2) Code | S - 7 years | Daughter | 7 years | 2 years concurrent |
| 12 | Carnal knowledge of daughter: s 197 Code | S - 7-9 years | Daughter | 20 years | 4 years 6 months concurrent |
| 13 | Incited indecently dealing by child under 13 years: s 189(2) Code | S - 8-10 years | Daughter | 7 years | 3 years concurrent |
| 14 | Incited indecently dealing with child under 13 years: s 189(2) Code | S - 8 years | Daughter | 7 years | 2 years 6 months concurrent |
| 15 | Carnal knowledge of daughter: s 197 Code | S - 8-9 years | Daughter | 20 years | 4 years 6 months cumulative |
| 16 | Indecently dealt with child under 13 years: s 189(2) Code | S - 12 years | Daughter | 7 years | 3 years concurrent |
| 17 | Carnal knowledge of daughter: s 197 Code | S - 13 years | Daughter | 20 years | 4 years 6 months concurrent |
| 18 | Incited indecently dealing by child under 13 years: s 189(2) Code | R - 10 years | Daughter's friend | 7 years | 3 years cumulative |
| 19 | Indecently dealt with child under 13 years: s 189(2) Code | R - 11 years | Daughter's friend | 7 years | 2 years 6 months concurrent |
| 20 | Incited indecently dealing by child under 13 years: s 189(2) Code | R - 11 years | Daughter's friend | 7 years | 2 years 6 months concurrent |
| 21 | Carnal knowledge of daughter: s 197 Code | SA - 5 years | Daughter | 20 years | 4 years 6 months concurrent |
| 22 | Indecently dealt with child under 13 years: s 189(2) Code | SA - 5 years | Daughter | 7 years | 2 years 6 months concurrent |
| 23 | Indecently dealt with child under 13 years: s 189(2) Code | SA - same time as 23 | Daughter | 7 years | 2 years concurrent |
| 24 | Carnal knowledge of daughter: s 197 Code | SA - 10 years | Daughter | 20 years | 4 years 6 months concurrent |
The facts
The facts of the offences were not in dispute.
Counts 1 to 5 of the indictment relate to offences that were committed against C, who was a ward of the State at the relevant time.
In 1965 when C was between seven and eight years of age she lived at a foster home in Rivervale. At about this time the appellant moved into a house on the same street with his partner and their children. He was aged about 26 years old at the time. The appellant was related to C's foster parents and began visiting their home. C came to refer to the appellant as her uncle.
Over a period of approximately 19 months the appellant sexually abused C. The counts on the indictment are representative in nature. As regards count 1, on a date unknown C was at home with her step brother, aged 9, and the appellant. The two males held a mop at each end. As C jumped over the mop she could see the appellant looking up her dress. The appellant then asked her to show him a chicken pen. Whilst there the appellant pulled his penis out of his pants and asked her to touch and kiss it which she did. He then coaxed her to suck his penis, which she also did. After a short time the appellant put his penis back in his pants and praised C for making him so happy and told her to remember he loved her and would one day come back and look after her.
Counts 2, 3 and 4 all occurred on another later day. On this occasion C was sitting at the kitchen table having a meal with the appellant, her step father and step brother. Following the meal C and the appellant went to the lounge room to watch television. The step father and step brother had gone to have showers and change to go out. The appellant asked C to come over to where he was sitting. As she stood in front of him in her pyjamas the appellant pulled down her pants to the top of her knees and started to fondle her vagina. He kissed and licked her vagina and then placed a finger inside her. As he was moving his finger inside her vagina the appellant pulled his penis from his pants (count 2).
The appellant stopped what he was doing and C pulled her pants up and sat on the edge of the couch. The step father later entered the lounge and he and her step brother left to go to out. The appellant also left the home. C went to bed believing that an old lady who lived next door would come and check on her as arranged by her step father. As she was lying on her back in her bedroom she heard the back door being opened. She then heard the bedroom door open and the appellant entered. He started to kiss her face and neck and then lifted her pyjama top up and kissed her chest and body before placing his tongue inside her vagina (count 3).
The appellant then placed one hand over C's mouth and used his other hand to hold her hands above her head before penetrating her vagina with his penis. C described the pain as 'excruciating' and said that she was crying as this occurred. The appellant said that he loved her and wanted to marry her when she got older. He told her she could not tell anyone what had happened as he would go to gaol and she would go to a bad girl's home. She promised that she would not tell anyone and he left (count 4).
The next incident occurred on a date unknown between 1 January and 26 August 1967 when C was in Year 4 at school. As she was leaving school she saw the appellant's van parked outside the school. He called her over and offered her a lift home. She initially refused but he insisted. He told her he had to make some meat deliveries and that he would explain to her step father why she was getting home late. After making some deliveries the appellant drove down a dirt track near the river not far from where C lived and parked the van. They both got out of the van and the appellant told C to look into the back of the van to see all the meat he had to deliver. The next thing she recalled was lying on her back on some soft material. She was in her school uniform and the appellant lifted her skirt up and pulled her knickers down. He kissed her on the face and neck whilst placing his fingers inside her vagina. He then penetrated her vagina with his penis. While he did this he covered her mouth with one hand. After a short time he removed his penis. C can recall bleeding from the vagina and the appellant using a piece of rag to wipe it. He then took her home (count 5).
C told several people in authority over a number of years about the abuse she had suffered but no action was taken to investigate her complaints. In September 2009, as a result of a claim made to the Redress WA Scheme, C made a formal statement to the police.
The complainant in respect of count 6 is K, a son of the appellant. On a date unknown in 1973 K was sexually abused by the appellant at the family home in Palmyra. K was between 11 and 12 years of age at the time. He was told by the appellant to go into the lounge room and bend over a chair so that he was facing away. The appellant pulled down K's pants and underpants to his ankles and proceeded to rub what felt like Vaseline around his anus. K felt the appellant's body against his backside and the appellant's hands on his hips. He felt pressure against his anus as the appellant tried to insert his penis. After a short time the appellant stopped and left.
The complainant in respect to count 7 is M, another son of the appellant. This offence also occurred in 1973, at which time M was 8 years old. On a date unknown M was having a bath with his sister, S. The appellant entered and told both of them to get out of the bath. He then spread a towel on the floor and told S to lie on her back with her legs apart. He then told M to lie on top of S and rub up and down on her. Both children were naked and the appellant masturbated whilst he watched them. M began to cry as he did not want to continue. After trying to cajole M to continue without success, the appellant told him to 'fuck off' as he was 'a pain in the arse'.
The complainant with respect to counts 8 to 17 is S, a daughter of the appellant. She was sexually abused by the appellant for a period of approximately 12 years whilst living at addresses in Palmyra and Langford.
On a date unknown when S was either four or five years old she was watching television with the appellant, her brothers and her sister. The appellant asked her to sit on his lap and he then placed his hand under her dress and took her underpants off. He then placed his penis on the outside of her vagina and moved so that his penis was rubbing backwards and forwards against her vagina. S recalled her brother M looking at her in disgust as this occurred. After a short time the appellant slid forward so that he could pull his penis away and continued to masturbate himself. When he was finished he told S that she could get down. She put her underpants back on and sat back on the floor to continue watching television (count 8).
Count 9 relates to the same incident that was the subject of count 7 in respect of M. On the same occasion, after M had left the bathroom, the appellant told S to get dressed. He then told her to suck his penis and masturbate it, which she did. Those events constitute count 10 on the indictment.
On another occasion when S was seven years of age, the appellant called her to his bedroom and tried to put his fingers into her vagina. S was unable to say whether the appellant was able to get his fingers inside though she recalls his finger nails hurting her. The appellant then smelled his fingers and masturbated. These events constitute count 11 on the indictment.
S became good friends with R, a girl who was about 12 months older than S. On a date unknown when S was about nine years old and R was 10 years old the appellant called them into his bedroom and made them take their knickers off. He was seated on the edge of the bed and naked from the waist down. He asked S to sit on his lap and to pull the lips of her vagina down so that they wrapped around his erect penis. This type of behaviour had been occurring for some time so S knew what she had to do. As this was occurring the appellant told R to watch. The appellant then said it was R's turn and she put his penis into her mouth. She thought it was a game. She asked S if she was doing it right and S told her how to do it. She continued to suck the appellant's penis until he ejaculated in her mouth. The events in respect of S constitute count 12 on the indictment and those in respect of R constitute count 18 on the indictment.
At around the same time, when S was between eight and 10 years of age and R was about 11 years of age the appellant was in the kitchen with R and S who took turns sucking his penis. The appellant then made both girls remove their clothes and sit on the kitchen table with their legs apart so that he could sketch their vaginas. He used his finger and a pencil to hold R's vagina open. These events constitute count 13 in respect of S and count 19 in respect of R.
On another date unknown when S was eight years of age the appellant drove her to a ballet lesson. On the way home he told S to open the glove box and remove a pornographic magazine. He pulled over to the side of the road. He then flicked through the pages of the magazine and asked S what she thought of the pictures. He then undid his pants, pulling out his erect penis and told her to suck it. As she was doing so another motorist stopped and walked over to the car. The appellant put his penis back inside his pants and told S to curl up on the seat as if she was sick. He gave the other motorist this explanation as to why he had stopped the car (count 14).
On another unknown date when S was between eight and nine years old her mother went to Bunbury to care for her own mother leaving the children in the care of the appellant. Whilst she was away the appellant's sexual abuse of S became worse. On one occasion he told S to come into his bedroom where both stripped off their clothes. The appellant sat on the floor and made S face him. He then performed oral sex on her and she could feel his tongue enter her vagina. He asked her if she liked it and she told him his whiskers were pricking her. After a short time the appellant made S kneel on all fours on his bed. He then stood behind her and she felt his erect penis start to enter her vagina. She began to cry because it was hurting and he told her to relax and it would not hurt any more. He continued to push his penis in further and S kept crying and telling him that it was hurting her. The appellant eventually became frustrated and angry and let her go. She put on her clothes and left while the appellant masturbated while looking in the mirror (count 15).
On a later date when S was 12 years old her mother was in hospital having just given birth. The appellant let S stay home from school. On this occasion he made S kneel on the floor in the kitchen and placed his flaccid penis in to her mouth. He began to ram his penis which quickly became erect and S began to choke. The appellant kept his hands on S's head and forced his penis into her throat until he ejaculated (count 16).
On an unknown date between 1980 and 1981 when S was 13 years of age her mother had gone out and S had stayed home to cook dinner. The appellant came out of his bedroom naked with his penis in his hand. He locked the front and back doors and told S to go into his bedroom. He then made S lie on her back with her buttocks on the edge of the bed and he positioned the mirror so he could see himself. He then placed his penis in S's vagina. He told her it would be easier if she turned over. He then made her get onto all fours, again placing his penis in her vagina. He moved backwards and forwards forcing his penis in further each time. As this was occurring S was in pain and crying. The appellant ejaculated over S's genitals and anus and rubbed it around with his penis (count 17).
In 1981 S disclosed to another brother, W, who had been living apart from the family that the appellant had been 'doing rude stuff'. Police became involved and the appellant was charged with one offence of indecent dealing. Due to her emotional state at the time S was unable to provide police with enough detail of anything other than the one incident that was the subject of a charge.
The complainant with respect to counts 18, 19 and 20 is R. She was around eight or nine years of age when her family moved to Langford where she became best friends with S. She would stay at the appellant's house most weekends because her own mother was a night nurse. The facts in respect of counts 18 and 19 have already been referred to. As regards count 20, on a date unknown between 1975 and 1976, R went to the appellant's home to see if S had returned from a ballet concert. The appellant told R to come into his bedroom where he unzipped his pants and removed his erect penis. She sucked his penis until ejaculation. These were not the only incidents of abuse involving R. She was abused so often that she cannot remember every specific incident. The appellant also encouraged R to bring other young girls to the house, but she was unable to persuade anyone else.
Counts 21 to 24 relate to SA, another daughter of the appellant. She was sexually abused by the appellant over an eight year period whilst the family lived in Langford.
On a date unknown in 1976 when SA was five years old she was sleeping in the appellant's bed whilst her mother was away in Bunbury. The appellant told SA to get undressed before getting into bed. He woke her during the night and pulled her onto his lap. He was also naked. He put his penis between her legs and had her face the mirror and said to her, 'This is like you are a boy'. He then moved her up and down with his penis between her thighs. A short time later he pushed his penis against her vagina and pushed down on her shoulders so that his penis started to enter her vagina. SA began to complain and yell and the appellant whispered into her ear to shut up as she would wake everyone. SA then began to cry as it was hurting but she was unable to move because the appellant had hold of her arms from behind. She then felt a burning sensation in her thighs and felt wet in her groin area. The appellant said, 'shit, shit' before carrying her into the bathroom and placing her in the bath. SA could see blood coming from her vagina into the bath water. After a short time he dried SA off and took her back into the bedroom where he rubbed Vaseline into her vagina whilst he masturbated (count 21).
On another date unknown in 1976 when SA was five years old the appellant built a bike for her. He took her into a shed because he said he wanted to adjust the seat of the bike. Once inside the shed he bolted the door and told SA to take her knickers off and sit on the seat. He then unzipped his pants, removed his erect penis and placed it in her mouth. Those events constitute count 22 on the indictment. He then told SA to stand in front of the door with her back to it. He squatted in front of her, lifted her shirt and began to perform oral sex on her. He then placed one of his fingers into her vagina whilst he masturbated. These events constitute count 23 on the indictment.
The final offence occurred on a date unknown in 1980 when SA was 10 years old. On this occasion the appellant took SA to see some horses. After looking at the horses the appellant sat sideways in the passenger seat of his car with his feet on the ground. He ordered SA to pull her pants and knickers to her ankles, which she did. She then sat on his penis and it entered her vagina. He told her to imagine it was a horse's penis inside her and he was thrusting his penis very hard into her vagina. These events constitute count 24 on the indictment.
As a result of the report made by C in 2010 police contacted the other complainants and this resulted in the disclosure of the offending. The appellant was then interviewed on 10 August 2010. He admitted some of the offending in respect of some of the complainants, but denied any of the acts of penile penetration.
Personal circumstances
The appellant was 73 years old at the time of sentencing. He had been married twice and had three children by the first marriage and five children by the second marriage.
The appellant was subject to verbal, physical and sexual abuse as a child. At the age of 19 he had an accident while driving his motorcycle and not wearing a helmet and this resulted in head injuries. He was unconscious in hospital for 13 days and unable to return to work for about five months. At the age of 26 he was king hit at a hotel and rendered unconscious. These injuries may have been the cause of some memory deficits.
The appellant met his second wife when he was aged 23 and they had five children together. At one stage the appellant's second wife left the relationship and when she returned she was suffering from a sexually transmitted disease. This had a significant impact on the relationship. The appellant had started using alcohol to excess on a regular basis at about 22 and this use escalated after his first wife left him and increased progressively during the second marriage. After being convicted of indecent dealing against S in 1982 the appellant started to address his alcohol abuse and ceased using alcohol entirely 20 years ago.
The appellant was assessed by a neurologist, a psychologist and a psychiatrist. The psychiatrist said that there was no evidence of formal thought disorder or of psychosis. He reported that the appellant partially denied the offending and claimed to have no memory of some offences. However, his memory of some other matters was quite detailed. There was no evidence to suggest that the appellant suffered from a serious mental illness or a cognitive impairment. The psychiatrist said that the offending conduct readily suggested the presence of paedophilia. However, it was possible that the offending behaviour between 1966 and 1981 resulted less from a specific deviant sexual arousal than from the combination of problems with the appellant's intimate relationships, alcohol abuse and a general preparedness to violate the rights of victims who were both vulnerable and available to serve his needs. There was a lack of empathy or remorse, however the psychiatrist assessed the risk of re‑offending as being in the low range. That assessment was largely influenced by the appellant's age and practical circumstances.
As regards the appellant's physical health, the most significant matters are that he suffers from ischaemic heart disease and Paget's disease. The latter disease manifests itself in arthritis in most, if not all, of his joints.
The appellant had no record of prior offending other than the conviction in 1982. That offence was part of the same course of conduct and was not treated as a prior offence for the purposes of sentencing. The appellant received a period of probation for the 1982 conviction and did not re‑offend thereafter.
The full extent of the appellant's offending did not come to light until 2010. When interviewed by the police in 2010 he made a number of admissions but denied any sexual penetration. Not all of the allegations were put to the appellant in the interview because it was terminated at his insistence.
The guilty pleas
The appellant was originally charged by police on 13 August 2010 with 43 offences relating to the six complainants. An indictment containing 37 counts was filed on 13 April 2011. An application was made by the appellant for separate trials in respect of some of the charges. That application was heard and refused on 5 August 2011. A ten day trial was then listed to commence on 19 September 2011.
Negotiations between the parties resulted in the filing of a notice of discontinuance and a new indictment containing 24 counts being presented. On 19 September 2011, being the first day listed for trial, the appellant entered pleas of guilty to the charges on the new indictment and convictions were recorded. The appellant was then remanded in custody to await sentencing.
Sentencing was delayed due to the appellant changing his counsel and subsequently applying to withdraw his pleas of guilty. Following a further change of counsel that application was abandoned on 24 May 2012. Sentencing was then further delayed by the need to obtain various medical reports.
On 18 January 2013 the appellant was again arraigned on the 24 count indictment and entered pleas of guilty. The facts were read and admitted and submissions made on sentence.
Sentencing remarks
The sentencing judge concluded that the pleas of guilty should be considered late pleas but that they nonetheless had benefit to the State and to the complainants, who would otherwise have been required to give evidence which would inevitably have been traumatic. He concluded that the pleas were deserving of a discount of 15% on the sentences that would otherwise have been imposed: s 9AA Sentencing Act 1995 (WA).
The sentencing judge acknowledged that due to the appellant's age and ill health his time in prison would be a more significant hardship than might be the case with other offenders. He also acknowledged that advanced age is a relevant consideration in determining whether a sentence will be crushing for the purposes of the totality principle. However, his Honour noted that age is only one factor in the sentencing process and advanced age can never be a justification for a sentence that is not fairly proportionate to the seriousness of the offending. His Honour concluded that in the present case the nature of the offending was such that the appellant had forfeited any right to expect a useful life after release.
As to the appellant's physical health, the sentencing judge noted that the arthritic condition required the use of strong painkillers. His Honour said that it was the responsibility of prison authorities to provide appropriate care and treatment for sick prisoners. There was no material to indicate that appropriate medication and treatment would not be available in prison. His Honour noted that the appellant had been in custody since September 2011 and there was no indication that he had been disadvantaged by a lack of treatment whilst in prison.
The sentencing judge referred to the fact that there was a considerable passage of time since the commission of the offences. He made reference to the offending ceasing more than 50 years ago. That appears to be an error as the last of the offences was committed 32 years ago. However, it is an error that only favours the appellant. In any event, his Honour noted, passage of time by itself is not a mitigating factor. The issue was whether in the intervening period the appellant had taken meaningful steps towards rehabilitation. Whilst the appellant had ceased to use alcohol, his Honour said that this was of limited relevance as there had been no assertion that the appellant was under the influence of alcohol when any of the offences were committed. His Honour accepted that the fact that the appellant had not re‑offended since being convicted in 1982 was a factor to his credit. But his Honour did not consider this to be a significant mitigating factor because the appellant had not undertaken any counselling or treatment nor taken any steps to have assistance provided to the victims. Further, his Honour concluded that the cessation of the offending was likely to have been because after 1982 there were no longer victims readily available to the appellant.
As to the seriousness of the offending the sentencing judge noted the following factors:
1.the offending took place over a 15 year period;
2.there was a significant age disparity between the appellant and the victims;
3.the appellant was in a position of trust in respect of each of the victims. In particular four of the victims were the appellant's children, one was a ward of the State and one was a friend of his daughter who had become a regular visitor;
4.there were elements of coercive and forceful behaviour on the part of the appellant;
5.the corruption of the victims was contributed to by the fact that on a number of occasions offences on one of the victims were committed in the presence of others or there was joint participation;
6.the offences were representative of a course of conduct that occurred over an extended period of time;
7.there was a lack of remorse and this could not be accounted for by loss of memory, particularly because there was an element of selectiveness in the appellant admitting less serious sexual acts but denying sexual penetration;
8.the long‑term impact of the offences on the victims had been substantial.
His Honour considered that personal deterrence was not a significant factor bearing in mind that there would be little opportunity for future offending and that the appellant had not re‑offended since 1982. However, his Honour said that general deterrence, punishment and denunciation were of significant importance. His Honour then said:
This offending must be in the worst category of offending. Whilst one can always imagine worse cases of sexual offending against children by thinking laterally and primarily in a familial sense, in your case there were six victims, four of whom were your children, one was a ward of the State and one a friend of one of your daughters who became a regular visitor. The offences were committed over 15 years. There were a variety of offences all serious.
In addition, offences were committed when two victims were involved which had, in itself, a corrupting effect. You committed these offences to satisfy your perverse sexual desires against vulnerable children without caring, it would seem, about the impact which would be inevitably felt by them. You recklessly took away their innocence for your own pleasure. …
I do not intend to make specific reference to these [victim] impact statements. They are heart rending and they demonstrate the incredible hurdles which each victim has had to endeavour to overcome in their formative years and thereafter, and, no doubt, until the end of their days. Your offending in the circumstances which I have referred to constituted an horrendous litany of sexual offending to satisfy your sexual urges which were relentlessly perpetrated on innocent children who were in your care. You must have known the harm you were causing them, alternatively, it seems to me, you did not care.
His Honour initially imposed sentences that produced a total effective sentence of 21 years. He then said that to ensure that the total sentence was one that properly reflected the overall criminality and was not crushing he would reduce the total sentence to one of 16 years. That was achieved by reducing the sentence of 2 years initially imposed on count 6 to one of 18 months and ordering that the sentence imposed on count 21 be served concurrently.
Grounds of appeal
The ground of appeal for which leave was granted, as amended at the hearing of the appeal, is as follows:
1.The learned sentencing judge failed to give proper effect to the totality principle in imposing an aggregate sentence of 16 years' imprisonment.
Particulars
1.1Whilst each sentence taken individually was appropriate, the aggregation of the sentences was not a just and appropriate measure of the offender's total criminality;
1.2Further, and also in the alternative, the total sentence was crushing and destroyed any expectation of useful life after release for the offender.
At the hearing of the appeal an issue was raised as to whether in making an assessment of whether a case fell into the worst category the personal circumstances of the offender should be taken into account. The parties were given leave to file further written submissions in this regard.
The appellant's further written submissions also sought the court's leave to add an additional, alternative, ground of appeal. That proposed ground is as follows:
Alternatively, the learned sentencing judge erred in law in finding that the offending was in the 'worst category' for the purposes of The State of Western Australia v BLM
Particulars
2.1The finding was not open as the court did not find that any particular offence justified the imposition of the statutory maximum penalty or something approaching it;
2.2In making the finding the court had regard only to general deterrence and the Dempsey factors and failed to take account of the circumstances of the offender.
Worst category of offending
Before turning to the merits of grounds of appeal it is necessary to consider what consequences flowed from the conclusion by the sentencing judge that this case fell into the 'worst category'.
In Bensegger v The Queen [1979] WAR 65 Burt CJ said:
A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non‑existing but aggravating circumstances would never be beyond the reach of the imagination. The true rule as I understanding it is that the maximum sentence should be reserved for the worse type of cases falling within the prohibition, or as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WARL 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was. In my opinion, on the facts as appearing in the trial judge's report to this court these offences, and particularly the smuggling offence, can each fairly be said to be of the worst type and notwithstanding the fact it was the applicant's first offence 'of the sort' and notwithstanding the antecedents and personal history of the applicant which, as the trial judge points out, are not without blemish they called for the imposition of the maximum custodial sentence.
See also McLaughlin v The State of Western Australia [2012] WASCA 204; (2012) 224 A Crim R 134 [62] (Buss JA) and Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson & Toohey JJ).
Categorisation of a case as falling into the worst category has acquired an additional significance as a result of The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414. In that case consideration was given to the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) (Amendment Act). That Act had the effect of abolishing the one‑third reduction that a sentencing judge had previously been required to make when sentencing an offender to a fixed term of imprisonment. However, the schedule to the Act provided a mechanism whereby a sentencing court could have regard to sentences that were previously imposed for similar offences. The relevant provisions of the schedule are cl 3A(3) and cl 3A(4) which provide:
(3)A court sentencing an offender to a fixed term can have regard to the minimum custodial period of a fixed term to be imposed and the minimum custodial periods of fixed terms imposed before the relevant commencement, whether or not clause (2) applied to their imposition.
(4)A court sentencing an offender to a fixed term can impose a penalty up to the statutory penalty for the offence.
In BLM the majority (Wheeler and Pullin JJA, Owen JA agreeing) held that the effect of these provisions was not to increase the minimum custodial terms to be served by all offenders. In general, that is for cases not falling within the worst category, where a range of sentences had been previously established a sentencing judge was required to have regard to the minimum custodial terms imposed in previous cases with the aim of achieving broad consistency.
However, where an offence comes within the worst category a sentencing judge is not bound by a range of sentences established prior to the commencement of the Amendment Act. In such a case the court may impose a minimum custodial term beyond the previously established range of sentences. This allows cl 3A(4) of the Act to have some, though limited, application. A sentencing judge can impose a sentence at or near the statutory maximum penalty where the case falls within the worst category of offences, notwithstanding that such a sentence would be outside the previously established discretionary range: BLM [42], [43].
One of the difficulties with this approach is that it would effectively create two sentencing regimes, one for the majority of cases and one for those that fall into the worst category. There may be an unintended, but significant, difference between sentences imposed for cases that fall into the worst category and those which are close to being in that category but to which the normal discretionary range is applicable. These difficulties were referred to by Buss and Miller JJA (in dissent on this point) in BLM at [238] and [281].
There appears to have been an assumption that the principles referred to in BLM mean that in any case where the sentencing judge concludes that a case is in the worst category any reference to the range of sentences commonly imposed for such offences will not be relevant in determining whether there has been an error in exercise of sentencing discretion. Such an assumption is too broadly framed.
BLM deals with circumstances in which a sentence at or near the statutory maximum can be imposed. It does not deal with cases where the challenge is to the total effective sentence where none of the individual sentences exceeds the established discretionary range. The effect of BLM is not that in any case that can be described as falling into the worst category comparisons will be meaningless. Rather, its effect is limited to those cases where the unusual seriousness of an individual offence justifies a sentence at or approaching the maximum statutory penalty.
In the present case none of the individual sentences were at or close to the maximum statutory penalty. Indeed, it is accepted that the individual sentences were all within the customary range. The issue is not whether any of the individual sentences were above that range but whether the total effective sentence was disproportionate or crushing. The placing of this case into the worst category was not necessary to justify any unusually high individual sentence and that categorisation did not engage the principles referred to in BLM. Rather, it was an expression used by the sentencing judge to convey his view of the seriousness of the offending conduct in totality. For these reasons, in my view, this case falls to be determined on the normal application of the totality principle.
Merits of the appeal
The totality principle has two limbs. The first limb 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, having regard to all relevant circumstances including those referable to the offender personally. The second limb is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of a useful life after release from custody.
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 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 and McLure JA agreeing).
The appellant referred to a number of sentencing decisions involving serious sexual offending against children. Those cases included RDC v The State of Western Australia [2012] WASCA 16, MAS v The State of Western Australia [2012] WASCA 36, CJF v The State of Western Australia [2012] WASCA 69, SWD v The State of Western Australia [2012] WASCA 76, MMC v The State of Western Australia [2012] WASCA 187, The State of Western Australia v FJG [2012] WASCA 206 and HFM v The State of Western Australia [2012] WASCA 217. Some of those cases involved pleas of guilty whilst others proceeded to trial. The number of charges, number of victims, age of the victims and age of the offenders varied significantly.
To this list can be added B v The Queen[2002] WASCA 236, LSC v The Queen [2003] WASCA 303, VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1, PDS v The State of Western Australia [2006] WASCA 20, GHS v The State of Western Australia [2006] WASCA 42, Truscott v The State of Western Australia [2007] WASCA 62, GMS v The State of Western Australia [2009] WASCA 107, KMB v The State of Western Australia [2010] WASCA 212 and ERA v The State of Western Australia [2013] WASCA 163. In each of those cases the offender received a total effective sentence of at least 10 years' imprisonment, in post transitional terms, for multiple child sex offences. The highest total effective sentences were imposed in GHS (14 years), KMB (14 years 6 months), SWD (14 years) and ERA (16 years).
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 that included 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. 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 one of 14 years.
In KMB the offender was convicted after a trial of seven counts alleging various sexual offences against his step daughter. The complainant gave evidence at the trial that from the time she was eight years old until she was 18 the offender raped her continuously. He was in a position of trust, the child having been left in his care when her mother left him. The complainant was particularly vulnerable having no one else to care for or protect her. There was a marked disparity in age, the offender being 32 years old at the commencement of the offending and 42 when it ended. The sexual abuse had caused the complainant to become pregnant at the age of 12 which resulted in her undergoing a termination. The sentencing judge in KMB characterised the offending conduct as a whole as 'nearing the worst category of this type of case to come before the court'. The offender had reasonably good personal antecedents including no relevant prior convictions. He was sentenced to a total effective sentence of 14 years and 6 months' imprisonment. An appeal against that sentence was dismissed.
In SWD the offender was convicted after a trial of six sexual offences committed against his son and daughter. The offences against the son, who was aged 10 at the time, involved forceful digital and penile penetration of the anus. The offender told his son not to tell anyone otherwise he would kill the child's mother. The offences against the daughter occurred when she was seven to eight years old and involved four incidents of forceful penile penetration of the vagina. In the case of both complainants the offences were representative of a course of sexual conduct. Significant injury was caused to both children. The offender showed no remorse or insight. Both complainants were seriously damaged both emotionally and physically. A total effective sentence of 14 years' imprisonment was imposed. An appeal against sentence was dismissed.
In ERA the offender was convicted of 21 counts of sexual offending against a number of children after a trial. The offences were committed against four girls and at two distinct periods. Between 1974 and 1975 the offender committed offences against his two nieces. Between 2005 and 2008 he sexually abused his two granddaughters. The offences against the first niece involved rubbing her vagina with his hand and rubbing his penis against her vagina. She was aged 11 or 12 at the time. The offences against the second niece involved rubbing her vagina with his hand, using her hand to masturbate his penis, rubbing his penis against her vagina and, on one occasion, penetrating her vagina with his penis. There were nine offences against this complainant and she was aged eight at the time. The offending against the first granddaughter involved four acts of penetrating her vagina with his penis. At the time of these offences she was aged eight. The offences against the second granddaughter involved digital penetration, inserting a vibrating sex toy into the child's vagina and penile penetration. There were five offences of this nature and the child was aged seven at the time. A total effective sentence of 16 years' imprisonment was imposed. The fact that the offender had abused four young girls and had assaulted and corrupted two generations of children within his family were particularly serious features of the offending. The offender in that case had a previous record, having committed incest with his daughter when she was ten or eleven and he was 35 or 36. The incest had involved numerous acts of penile vaginal penetration. The offender had been convicted on 5 May 1984 of one count of incest and was sentenced to 5 years' imprisonment with a minimum term of 2 years and 4 months. Whilst he could not be punished again for that criminal behaviour his prior record reflected on his moral culpability for the offences against his granddaughters between 2005 and 2008 and emphasised the need for personal deterrence. An appeal against the sentence of 16 years' imprisonment was dismissed. Buss JA (with whom McLure P and Mazza JA agreed) concluded that when the total effective sentence was assessed in the context of the facts and circumstances of the offending, the vulnerability of and damage suffered by the complainants, the maximum penalties and all of the aggravating and mitigating factors (including the appellant's age) and having regard to comparable cases, it could not reasonably be contended that the sentence infringed the first limb of the totality principle. His Honour said that although the total effective sentence was high it was proportionate to the overall criminality involved in all of the offences when viewed in their entirety.
The offences in the present case were undoubtedly extremely serious. The offending continued over a period of 15 years and involved multiple victims. The appellant abused his position of trust by treating his children as mere instruments for obtaining his own sexual satisfaction. His conduct was without pity or remorse. He cynically preyed upon the vulnerability of the girl who was a ward of the State by telling her that he loved her and would return for her. The acts of sexual abuse included penile penetration. The conduct in respect of the four female complainants was representative in nature. The sentencing judge's characterisation of the appellant's conduct as constituting an horrendous litany of sexual offending is accurate.
There was little by way of mitigation. Claims that the appellant had rehabilitated himself did not bear scrutiny. Whilst it was accepted that the appellant had given up alcohol there was nothing to suggest that any of the offences had been committed whilst the appellant was under the influence of alcohol. Whilst no further offences had been committed since 1982 the sentencing judge concluded that the cessation of the offending was more likely to be due to the inability to access children than any effort by the appellant to address his past behaviour. That was a conclusion that was plainly open on the available information.
The only factor of significance in favour of the appellant was his pleas of guilty. Whilst those pleas were entered at a late stage they nonetheless obviated the need for a trial. They also showed a, somewhat belated, acceptance of responsibility. An allowance of 15% as a discount was appropriate.
The difficulty is whether the sentence imposed in this case can be reconciled with comparable cases. The sentencing judge's starting point, taking into account the pleas of guilty, but before reducing the sentence for totality reasons, was 21 years. In comparing the final effective sentence of 16 years with other cases it is necessary to take into account that many of the other cases, including ERA, did not involve guilty pleas. Taking into account the guilty pleas the sentence imposed here was exceptionally high. But for the pleas of guilty the total effective sentence here for comparison purposes would have been in the vicinity of 18 years and 9 months. That is considerably higher than any sentence imposed for comparable offences after a trial.
As serious as the offences in this case were, they could not be characterised as being significantly more serious than those in the other cases referred to including ERA. Whilst the number of victims in ERA was less, there were aggravating features in that case that were not present here. In ERA the offending involved the corruption of two generations of children within the same family and the second period of offending had occurred after a conviction and sentence of imprisonment for sexual offending against another member of the same family. For the appellant to receive the same sentence as the offender in ERA for offending of an arguably comparable level of seriousness would not provide for any allowance for the discount for a plea of guilty. For those reasons, in my view, whilst each sentence taken individually was appropriate, the aggregation of the sentences was not a just and appropriate measure of the offender's total criminality and particular 1.1 of ground 1 should succeed.
It is strictly unnecessary to consider the remaining grounds but I will do so for the sake of completeness. As to particular 1.2, advanced age is a relevant consideration in determining whether a sentence would be crushing. The rationale is that each year of a sentence represents a substantial portion of the period of life which is left to an offender of advanced age: Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Millar JJA agreeing). However, the extent to which leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. Age is only one factor in the sentencing process. Advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate: Gulyas [35]. An offence may be so serious that humanitarian considerations cannot be accommodated.
There can be little doubt that at the age of 73 a sentence of 16 years was likely to consume the balance of the appellant's life. That was a factor that was given appropriate consideration by the sentencing judge. His conclusion that the seriousness of the offences was such that humanitarian considerations could not in themselves justify a reduction in the sentence was clearly, in my view, correct.
As to the proposed alternative second ground, for the reasons I have earlier stated, the characterisation of the offending as being in the worst category did not engage the principles set out in BLM. That characterisation was merely an expression of the view of the sentencing judge of the seriousness of the offending looked at as a whole. It was not used in the sense assumed by this proposed ground. Given that the proposed ground is expressed to be in the alternative it is strictly unnecessary to refuse leave, but for the avoidance of doubt I would refuse leave in respect of it.
Conclusion
I would allow ground 1 and resentence the appellant. I agree with Buss JA that the appropriate total effective sentence is one of 14 years. I also agree with the orders that Buss JA proposes to achieve that result.
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