GHS v The State of Western Australia
[2006] WASCA 42
•15 MARCH 2006
GHS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 42
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 42 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:134/2004 | 20 OCTOBER 2005 | |
| Coram: | MALCOLM CJ PULLIN JA MURRAY AJA | 15/03/06 | |
| 48 | Judgment Part: | 1 of 1 | |
| Result: | Applications for leave to appeal granted Appeal CCA 134 of 2004 allowed Appeal CACR 3 of 2005 dismissed Sentence quashed New sentence imposed | ||
| D | |||
| PDF Version |
| Parties: | GHS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure – Sentencing – Totality principle Numerous counts of unlawful and indecent dealing with a child under the age of 14 years, sexual penetration of a child under the age of 16 years and inciting a girl under the age of 16 years unlawfully and indecently to deal Two complainants – Separate trials – Sentences of 8 years' imprisonment imposed in each case – Aggregate of 16 years' imprisonment – Whether aggregate sentence crushing Criminal law and procedure – Sentencing – Parole – Sentencing Act 1995 (WA) – Sentencing Legislation Amendment and Repeal Act 2003 (WA) – Sentence Administration Act 2003 (WA) Two or more parole terms Aggregation of parole terms to determine when prisoner eligible for parole |
Legislation: | Criminal Code (WA) Sentence Administration Act 2003 (WA), s 7 Sentencing Act 1995 (WA), s 34, s 93, s 94 Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Bell v The Queen [2001] WASCA 40 Bensegger v The Queen [1979] WAR 65 Dinsdale v The Queen (2000) 202 CLR 321 Herbert v The Queen (2003) 27 WAR 330 Jarvis v The Queen (1993) 20 WAR 201 Johnson v The Queen (2004) 78 ALJR 616 Marriott v The Queen, unreported; CCA SCt of WA; Library No 970470; 19 September 1997 McLean v The Queen [1999] WASCA 209 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Podirsky v The Queen (1990) 3 WAR 128 R v Ginder (1987) 23 A Crim R 1 R v Melville (2003) 27 WAR 224 R v Quartermaine [2000] WASCA 341 R v Walsh, unreported; CCA SCt of WA; Library No 950385; 4 August 1995 The Shop, Distribution and Allied Employees' Association of Western Australia v Williams [2005] WASCA 155 Veen v The Queen (No 2) (1988) 164 CLR 465 VIM v The State of Western Australia [2005] WASCA 233 Woods v The Queen (1994) 14 WAR 341 Worthington v The State of Western Australia [2005] WASCA 72 Bishop v The Queen [2003] WASCA 79 D v The Queen [2003] WASCA 33 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Godden v The Queen [2003] WASCA 150 Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970385; 8 August 1997 Lowndes v The Queen (1999) 195 CLR 665 R v Chilvers [2003] WASCA 87 R v Liddington (2005) 152 A Crim R 502 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GHS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 42 CORAM : MALCOLM CJ
- PULLIN JA
MURRAY AJA
- CACR 3 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
For File No : CCA 134 of 2004
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : NISBET DCJ
File No : IND 1548 of 2003
For File No : CACR 3 of 2005
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 578 of 2003
Catchwords:
Criminal law and procedure – Sentencing – Totality principle - Numerous counts of unlawful and indecent dealing with a child under the age of 14 years, sexual penetration of a child under the age of 16 years and inciting a girl under the age of 16 years unlawfully and indecently to deal - Two complainants – Separate trials – Sentences of 8 years' imprisonment imposed in each case – Aggregate of 16 years' imprisonment – Whether aggregate sentence crushing
Criminal law and procedure – Sentencing – Parole – Sentencing Act 1995 (WA) – Sentencing Legislation Amendment and Repeal Act 2003 (WA) – Sentence Administration Act 2003 (WA) - Two or more parole terms - Aggregation of parole terms to determine when prisoner eligible for parole
Legislation:
Criminal Code (WA)
Sentence Administration Act 2003 (WA), s 7
Sentencing Act 1995 (WA), s 34, s 93, s 94
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
(Page 3)
Result:
Applications for leave to appeal granted
Appeal CCA 134 of 2004 allowed
Appeal CACR 3 of 2005 dismissed
Sentence quashed
New sentence imposed
Category: D
Representation:
Counsel:
Appellant : Mr R G W Bayly
Respondent : Mr M Mischin and Mr A D Sullivan
Solicitors:
Appellant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bell v The Queen [2001] WASCA 40
Bensegger v The Queen [1979] WAR 65
Dinsdale v The Queen (2000) 202 CLR 321
Herbert v The Queen (2003) 27 WAR 330
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen (2004) 78 ALJR 616
Marriott v The Queen, unreported; CCA SCt of WA; Library No 970470; 19 September 1997
McLean v The Queen [1999] WASCA 209
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Podirsky v The Queen (1990) 3 WAR 128
R v Ginder (1987) 23 A Crim R 1
R v Melville (2003) 27 WAR 224
R v Quartermaine [2000] WASCA 341
(Page 4)
R v Walsh, unreported; CCA SCt of WA; Library No 950385; 4 August 1995
The Shop, Distribution and Allied Employees' Association of Western Australia v Williams [2005] WASCA 155
Veen v The Queen (No 2) (1988) 164 CLR 465
VIM v The State of Western Australia [2005] WASCA 233
Woods v The Queen (1994) 14 WAR 341
Worthington v The State of Western Australia [2005] WASCA 72
Case(s) also cited:
Bishop v The Queen [2003] WASCA 79
D v The Queen [2003] WASCA 33
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Godden v The Queen [2003] WASCA 150
Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970385; 8 August 1997
Lowndes v The Queen (1999) 195 CLR 665
R v Chilvers [2003] WASCA 87
R v Liddington (2005) 152 A Crim R 502
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
(Page 5)
1 MALCOLM CJ: The Court has before it two applications for leave to appeal against sentence. It is convenient to deal first with CACR 3 of 2005.
CACR 3 of 2005
2 In the case of application CACR 3 of 2005, there is an application for an extension of time within which to appeal against "the sentence of 8 years imposed upon the applicant in the District Court on 24 June 2001 [sic 2004]" on the ground that the applicant:
"… now wishes to appeal against the sentence so that the Court of Criminal Appeal [(sic the Court of Appeal)] can review both this sentence and the sentence imposed by the District Court on 29 July 2004 which is the subject of CCA 134 of 2004."
3 On 23 June 2004, the applicant was convicted after a trial before Eaton DCJ on seven counts of sexual offences, namely, 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. He was acquitted on the remaining five counts. On 24 June 2004, he was sentenced, as recorded in the transcript, to imprisonment as follows:
Count 1: unlawful and indecent dealing with a child under the age of 14 years – imprisonment for 3 years.
Count 2: unlawful and indecent dealing with a child under the age of 14 years – imprisonment for 3 years.
Count 3: inciting a child under the age of 14 years to unlawfully and indecently deal with him – imprisonment for 3 years.
Count 4: unlawful and indecent dealing with a child under the age of 14 years – imprisonment for 3 years.
Count 6: rape – imprisonment for 6 years concurrent with counts 1 - 4.
Count 11: sexual penetration by engaging in cunnilingus of a child under the age of 16 years – imprisonment for 5 years.
Count 12: sexual penetration of a child under the age of 16 years by penetration of the vagina with his penis – 6 years to be served concurrently with the sentence of 5 years
(Page 6)
- for count 11. but cumulative upon the sentence of 6 years for the sentence for count 6.
4 The learned Judge directed that the sentences on counts 1 to 4 be served concurrently with each other and with the term imposed in respect of count 6. It was also directed that the sentence in respect of count 11 be served concurrently with the sentence imposed in respect of count 12, and that the sentences for counts 6 and 12 be cumulative upon each other.
5 His Honour then went on to say that this:
"… means effectively that the total term of imprisonment imposed would be 12 years were it not for the transitional provisions relating to eligibility for parole.
There has been recently a change in the law relating to parole and you should get the benefit of the transitional provisions. My understanding of my obligation under those provisions is that I should reduce that term of 12 years by one-third to eight years, so I impose in total an effective term of eight years' imprisonment. I direct that you be eligible for parole and I direct that the term commence as of yesterday, 23 June 2004, unless there's any time spent in custody of which I'm not aware."
6 Counsel were then asked whether there were any queries arising. Neither counsel raised a query.
7 It is apparent that the total sentence of 12 years was reduced by the learned Judge by one-third under the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) to one of 8 years' imprisonment and an order made that the applicant be eligible for parole in respect of each of the sentences imposed.
8 With respect to his Honour and counsel, the approach adopted by the learned Judge in the application of the transitional provisions to which his Honour referred was in error. In my opinion, the transitional provisions in cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) required that each of the individual sentences imposed be reduced by one-third, rather than the total of those sentences being reduced by one-third. In the result, however, the warrant of commitment appears to have corrected the sentences imposed by reducing each of the individual sentences by one-third. It appears that this was done pursuant to s 37 of the Sentencing Act 1995 (WA). It was accepted
(Page 7)
- by both parties that the sentences as recorded in the warrant were those in fact imposed. This had the result that the sentences imposed in accordance with the transitional provisions were varied as follows:
counts 1 to 4, imprisonment for 2 years in each case, to be served concurrently with each other;
the sentences imposed in respect of counts 6 and 12 be reduced to 4 years in each case; and
the sentence in respect of count 11 reduced to 3 years and 4 months, the sentences for counts 6 and 12 to be served cumulatively upon each other, but concurrently with the sentences imposed in respect of the other sentences, so that the total of the sentences would be 8 years.
9 All of the offences were committed by the applicant on his stepdaughter, whom I shall refer to as "P". The offences, the subject of counts 1 to 4 and 6 were committed at the family home in Shoalwater shortly after P's twelfth birthday in February 1985. The applicant called P into his bedroom where he fondled her breasts over the top of her brassiere (count 1) and rubbed her vagina with his hand over the top of her underwear (count 2). The applicant then pulled his penis from his shorts, placed the complainant's hand on his penis (count 3) inserted his fingers into her vagina (count 4) and then put his penis into the complainant's vagina (count 6).
10 In March 1987 when P was aged 14, the applicant went into her bedroom where he removed P's underwear, following which he engaged in cunnilingus and subsequently penetrated her vagina with his penis. These were the offences the subject of counts 11 and 12 on the indictment.
11 The application for an extension of time within which to make an application for leave to appeal is supported by an affidavit sworn by the applicant on 15 July 2005. The applicant seeks leave to appeal against the total sentence of 8 years imposed upon him in the District Court on 24 June 2004. An appeal against conviction was filed by his then solicitors on 14 July 2004. The applicant says that he thought that he was also appealing against the sentences imposed, but no application for leave to appeal against sentence was filed.
12 In the meantime, he was convicted in the District Court on 1 July 2004 of further offences, following a second trial before Nisbet DCJ for offences committed on a second complainant ("J"), who was P's sister,
(Page 8)
- for which a total term of imprisonment of 8 years was imposed on 29 July 2004. His solicitors filed an appeal against conviction and an application for leave to appeal against sentence in respect of those charges. He has since abandoned his appeal against conviction.
13 The applicant then instructed new solicitors who advised him that he should seek leave to appeal against the sentences imposed on 24 June 2004 for the offences involving P, so that the Court of Criminal Appeal could review both sets of sentences on the ground that each of the sentences were manifestly excessive or, in the alternative, the totality of the sentences was manifestly excessive. It was on this basis that the applicant sought an extension of time within which to make an application for leave to appeal against the sentences of imprisonment imposed on 24 June 2004. Leave to appeal was originally sought on the grounds that:
"1. The sentence of 8 years imprisonment with parole was in all the circumstances manifestly excessive.
Particulars
2. In sentencing the Applicant the Learned Sentencing Judge failed to give any or sufficient weight to;
a) the Applicant's antecedents
b) the substantial delay in bringing the prosecution
c) the prospects of rehabilitation"
14 As to the offences in relation to the complainant P, the facts found by the learned sentencing Judge were that in the case of the offences the subject of counts 1 to 6, at the material times, P was a child under the age of 14 years. At the time when the most serious offence of rape was committed, s 326 of the Criminal Code (WA) ("the Code") then provided that the maximum sentence was life imprisonment with or without a whipping. At the time when the offences of aggravated sexual penetration without consent were committed, s 183 of the Code provided that the maximum penalty was imprisonment for 20 years. For each of the four counts alleging either indecent dealing with a child under the age of 14 years, or inciting a child under the age of 14 years to indecently deal with him, the maximum penalty was imprisonment for 14 years.
15 The complainant P was born in 1973 and was aged about four when the applicant and P's mother formed a de facto relationship and moved
(Page 9)
- into a house in Parmelia. About the time P turned 12, the family moved to Shoalwater. In late 1985 the applicant and P's mother separated and P's mother purchased a house in Safety Bay and moved in with her two children. There was a reconciliation shortly afterwards and the applicant and P's mother were married in January 1987. The older daughter, J, moved out of the family home shortly afterwards. Later, the family moved to Busselton where they had purchased a motel business. They remained there until 1993. In the meantime, P completed her secondary education to year 10 in Perth. After travelling, she joined the applicant and her mother in Busselton until the motel was sold in 1993.
16 The applicant and P's mother then purchased a business in Kalgoorlie in July 1993. P remained in Busselton for a time and later joined the applicant and her mother in Kalgoorlie. They lived in Kalgoorlie until 26 September 2000. On that evening, there was a family argument. The following day, the applicant was accused of sexually interfering with P. When questioned by P's mother, the applicant admitted that he had done so, but said that he had stopped six years previously. In the result, the applicant left the matrimonial home on 27 September 2000. The applicant and P's mother have been separated since that time.
17 The applicant was charged with the offences against P on 7 June 2002. The facts relating to the applicant's convictions on counts 1 to 4 and 6 on the indictment were based on P's first specific recollections of incidents in relation to her sexual abuse by the applicant.
18 The learned Judge commented that this did not mean that there had been no sexual abuse before that, but that those counts represented "her first detailed recollection of some sexual abuse occurring".
19 The learned Judge went on to say:
"The offences, it seem [sic], took place at the home … in Shoalwater shortly after her twelfth birthday on 17 February 1985. Just the two of you were at home. You called her into your bedroom and began fondling her young breasts over the top of her training bra. You then restrained her from leaving the bed and moved your hand up her thigh and began rubbing her vagina over the top of her knickers. You then pulled your erect penis from your shorts and asked her to, 'Give it a tickle'. You held her hand and placed it on your penis manipulating it so as to masturbate yourself. You then inserted your finger into her
(Page 10)
- vagina. Those four acts comprise counts 1, 2, 3 and 4 in the indictment, all the subject of unanimous verdicts of guilty.
The child told you that she needed to go to the toilet and attempted to leave the room. You restrained her from doing so. You then pulled her knickers down – pulled her down so that she was lying on top of you, attempted to place your tongue in her mouth, and you used your hand to guide your penis into her vagina. You told her that you had had a vasectomy so that she would not get pregnant. Holding her hips you had intercourse with her and ejaculated. You then withdrew, told her that what had happened was, 'Our little secret,' and suggested that she go to the toilet, which she did.
The act of intercourse was the act of rape, being count 6 in the indictment, and the subject of the jury's unanimous verdict of guilty."
20 The learned Judge also said:
"The events giving rise to the remaining convictions, counts 11 and 12 in the indictment, occurred in about March 1987, not long after your marriage to the child's mother … [A] [P's mother] had gone to the local hospital, to have her tonsils removed, and the older sister [J] was no longer living at home at that time.
You went into [P's] bedroom and sat her down on the bed with her legs over the edge of the bed and her feet on the floor. You removed her knickers, ignored her protests, told her not to be a little bit, [sic bitch] and engaged in cunnilingus with her, first by licking the outside of her vagina and then inserting your tongue into her vagina. You kept her legs apart with your hands. You then while still kneeling on the floor inserted your erect penis into her vagina and had intercourse with her. You ejaculated and then withdrew. Those two acts are both acts of sexual penetration without consent in circumstances of aggravation."
21 P was then just over 14 years of age and in her second year at high school. The learned Judge said that, although the applicant would be sentenced only for the offences in respect of which he had been convicted:
"… they were samples of your ongoing predatory behaviour towards [P]. It appears that you sexually molested her over a
(Page 11)
- lengthy period, at least from the time when she was 12, if not shortly before, until she was aged 20 or 21 years.
As I commented to Mr Meertens, your admission to [the complainant's mother] on the morning – over the breakfast table – of 27 September 2000, that your sexual dealings with [the complainant P] had ceased some six years before, is in accord with [her] evidence to the effect that the activity ceased when she was 20 or 21 … Her 21st birthday would have been on 23 February 1994."
22 In this context, as the learned Judge correctly observed, s 10 of the Sentencing Act 1995 (WA) provides that:
"If the statutory penalty for an offence changes between the time when the offender committed it and the time when the offender is sentenced for it, the lesser statutory penalty applies for the purposes of sentencing the offender."
23 At the time when the offence of rape was committed, the maximum penalty was life imprisonment with or without a whipping under s 315 of the Code. The current maximum penalty for the equivalent offence, namely, sexual penetration without consent under s 325 of the Code, as it stands today, is imprisonment for 14 years: cfR v Melville(2003) 27 WAR 224.
24 The Code currently provides in s 320(4) that the maximum penalty for the offence of indecently dealing with a child of or over the age of 13 years, but under the age of 13 years, is imprisonment for 10 years. In the case of a child over the age of 13 years, but under the age of 16 years, s 321(2) provides that a person who sexually penetrates a child is liable to the punishment provided in s 321(7). Where, as in this case, the child is under the care, supervision or authority of the offender, is, as provided in s 321(7)(b) of the Code, liable to imprisonment for a maximum of 20 years for each of the offences of aggravated sexual penetration.
25 The learned Judge concluded that the applicant was:
"… liable to a maximum penalty of seven years in respect of the offences referred to – said to be in contravention of s 183 of the Code, to 14 years for the offence of rape, and to 20 years for each of the two offences of aggravated sexual penetration."
26 In sentencing the applicant, the learned Judge said:
(Page 12)
- "It is clear that your offences against the complainant occurred in circumstances where she was, in fact, a member of your family. You treated her as such and she regarded herself as such. You joined with her mother in the organisation and discipline of the household. It appears, as I said earlier, that you were a good provider and a good worker, and a hard worker for that matter. When asked as to attitude to you as a child the complainant said in her evidence, 'He was the only father figure I had.' She was entitled to trust you and to expect that you would treat her properly and safely.
She clearly did trust you and you abused that trust and, I might add, the trust of her mother. You did so, it seems over a considerable period of time, some nine years or thereabouts. It is notorious that conduct of this sort perpetrated upon young children can have lasting and sometimes terrible consequences. It is conduct which in years gone by quite often remained hidden in families. It is conduct that requires a substantial degree of general deterrence in any sentence that's imposed."
27 His Honour then referred to R v Ginder (1987) 23 A Crim R 1, which involved a Crown appeal against the sentence imposed on the natural father of a girl who sexually penetrated his daughter, without her consent, when she was under the age of 16 years. Her father pleaded guilty and was sentenced to imprisonment for 2 years and 1 month. Burt CJ said in that case at 4:
"… it must be accepted that sexual penetration by one person of another without the consent of that other person is a serious crime and that if the person so penetrated is under the age of sixteen years, it is even more serious. The law is, I think, clearly saying that a person who commits such a crime if he is to be sentenced should be punished and should be seen to have been punished."
28 In the result, the Crown appeal in that case was allowed and a term of imprisonment for 6 years was imposed.
29 The learned Judge also referred to the more recent case of R v Quartermaine [2000] WASCA 341 in which Wheeler J said at par [16]:
"The maximum penalty prescribed for the offence of sexual penetration without consent in the absence of circumstances of aggravation is 14 years' imprisonment. While there is no 'tariff'
(Page 13)
- for offences of sexual penetration without consent, and the cases show that sentences imposed vary substantially, the general range of sentences commonly imposed for a single act of penetration of the vagina with the penis where the victim is over the age of 16, remains of the order of about 6 years: R v Podirsky (1989) 43 A Crim R 404 at 411 per Malcolm CJ, Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995 at 9 per Malcolm CJ. A sentence of this kind is generally at the lower end of the scale for offences of this type, and is often the sentence which is imposed after taking into account mitigating factors … "
30 In the present case, the learned Judge regarded counts 6 and 12 as the most serious offences. His Honour went on to say:
"The mitigating factors in this case are not great. They are twofold really. They are your prior good character leading up to the beginning of this course of conduct which you embarked upon and the fact that subsequently since its cessation in 93 or 94, your only conviction has been of no moment whatsoever and that is, for the purpose of this exercise, a conviction of driving with a blood alcohol level in excess of .08 per cent.
The other factor that might be taken into account by me by way of some mitigation perhaps is that there was a substantial delay in bringing the prosecution of this matter. The activity, as I found it to be, ceased around about 93 or 94. The matter came to the knowledge of others as a result of a family argument in September of 2000 and, as I say, charges were finally laid in June 2002."
31 In imposing sentence, the learned Judge said:
"Having regard to the effective maximum penalties available at law with respect to each of counts 12 and 6, I would have started with a term of seven years in respect of count 6 and eight years in respect of count 12. For the mitigating factors, such as they are, I would reduce the term of imprisonment in respect of count 6 to six years and in respect of count 12 to six years.
I will direct that each of counts 1, 2, 3 and 4 should attract a penalty of three years' imprisonment having regard to the mitigating factors to which I have referred and I would direct
(Page 14)
- that those terms are to be served concurrently with each other and with the term I intend to impose in respect of count 6, having regard to the fact that they form part of a continuous course of conduct on that day."
32 In the result, as I have said, the total sentence was one of 8 years.
33 It has been said on many occasions that there is no "tariff" by way of sentence for sexual offences, but there is clearly a range of sentences commonly imposed for particular offences for penile sexual intercourse without consent of young girls. It is necessary in cases such as this where there are two complainants involved to take account of the totality principle which was stated by the High Court in Mill v The Queen (1988) 166 CLR 59 at 62 – 63 in terms of Thomas' Principles of Sentencing (2nd ed 1979) at pp 56 – 57 as follows (omitting references):
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
34 The totality principle falls to be applied both when a Judge is called upon to sentence an offender for a number of offences on one or more occasions and when a different Judge is sentencing an offender for further offences on another occasion. Where, as here, multiple offences have been committed against two complainants, it may be, as Ipp J pointed out in Jarvis v The Queen (1993) 20 WAR 201, for example:
"… whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may
(Page 15)
- be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."
35 The explanation for this is, as Ipp J said in Jarvis at 207, that "the severity of a term of imprisonment increases exponentially as it increases in length".
36 As long ago as 1989, it was accepted that the range of sentences commonly imposed for a single act of penile penetration, unaccompanied by any unusual circumstances of aggravation, was imprisonment for 6 to 8 years: Podirsky v The Queen (1990) 3 WAR 128. In that case, the Court of Criminal Appeal increased the sentence for a single act of sexual intercourse by way of penile penetration from 4½ years to 8 years in the exercise of the powers of the Court under s 693(1) of the Code, which were exercised by the Court on its own motion.
37 In that case, the offender had forced himself on his 14-year-old adopted daughter, who was a virgin, and engaged in the full act of non-consensual intercourse. When sentencing the offender, the learned sentencing Judge found that the child was living alone with him and entirely dependent on him. He invited her into his bedroom and began touching her and then having oral sex. He then forced himself on her by way of penile penetration, despite her screaming and asking him to stop because it hurt a lot. She tried to get away from him and push him off but he ejaculated in her. She ran to her room and found she was bleeding.
38 These acts were subsequently repeated by the respondent, as the learned Judge found, in terms of:
"Systematic and ever increasing sexual approaches and demands … since she was approximately nine years of age."
39 Intercourse continued on a regular basis commencing when she was 14 until she was 16 or 17 years of age. The complainant's evidence was that she only gained respite when she was menstruating or recovering from an abortion. The offender took no precautions with the result that the complainant had two abortions, one before and one after her 15th birthday. The offender exhibited no remorse. He had no insight into his conduct.
(Page 16)
40 In R v Walsh, unreported; CCA SCt of WA; Library No 950385; 4 August 1995, which was a Crown appeal, it was noted in my judgment (at p 4) that:
"It has been made clear, however, time and again that there is no 'tariff' for sexual offences and each case must be considered in the light of its own circumstances."
41 In Walsh, it was considered that the circumstances were such that the case was very close to falling within the worst category of cases for which the maximum penalty was prescribed: cf Bensegger v The Queen [1979] WAR 65 per Burt CJ at 68. In Veen v The Queen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said at 478:
"The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen [(1987) 163 CLR 447 at 451 – 452]. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."
42 In R v Walsh, the offender had been convicted on his plea of guilty to two counts of burglary, one count of deprivation of liberty and 11 counts of sexual penetration without consent. The sentencing Judge sentenced the respondent to imprisonment for 5 years on each of 11 sexual penetration offences to be served concurrently with each other; 1 year and 3 months for deprivation of liberty (after giving credit for 9 months in custody) to be served cumulatively; and 18 months on each of two burglary offences to be served concurrently with each other and, "as a matter of totality", concurrently with the other sentences.
43 In my judgment, Walsh was very close to falling within the worst category of cases for which the maximum penalty of 20 years was prescribed. It was held that a sentence of a total of 7 years was manifestly inadequate. The offender went to the window of a home unit in Maylands. He went in and disturbed the female occupant who fled. He then entered another nearby unit occupied by a 25-year-old mother ("the complainant") and her daughter, aged 3½. The complainant was a stranger to the respondent.
(Page 17)
44 The complainant saw the respondent standing in the doorway near her daughter's bedroom at about 11 pm. She became frightened about the welfare of her daughter who was asleep in the bedroom. She said to the offender "What have you done to my daughter?" The offender started walking towards her quickly. She said to him, "What are you doing?" and then tried to scream, but the offender placed his hand over her mouth and forced her into her bedroom where she was captive for a period in excess of five hours until about 4.20 am. She was then able to get away and ran, naked and clutching her daughter, to the house of a friend in an adjoining unit. She had been subjected to numerous acts of vaginal and anal penetration with the respondent using his penis, fingers and tongue. She did not resist for fear for her child.
45 In 1985 the offence of rape was renamed as penile penetration without consent. A new maximum penalty, absent circumstances of aggravation, was fixed at imprisonment for 14 years. It was made clear by the legislature that that was not done with a view to reducing the penalties. When the current legislation was introduced, it was said that:
"The Government expects that the new penalties will be taken by the courts to indicate Parliament's view that sexual assaults are extremely serious offences and that should be reflected in the penalties imposed.
…
The Government believes that although sentencing is a matter which must ultimately be left to the discretion of the courts, it is appropriate that the worst types of sexual assault, previously punished by a maximum of, effectively, up to 14 years, should be subject to a term of imprisonment towards the top of the 20-year range." [quoted by Pidgeon J in R v Walsh at p 4 of his Honour's reasons]
46 Pidgeon J said that the assessment by the learned sentencing Judge using imprisonment for 10 years as a starting point for the total sentences, the whole of the events for that evening, including the earlier housebreaking offence, was demonstrably inadequate. There was a second error regarding a sentence of 7 years for penile sexual penetration which, before taking into account the plea of guilty, was described by the sentencing Judge as a "normal sentence". The Court of Criminal Appeal had made it clear that there was no "tariff" for offences of this nature. As Pidgeon J said, at p 7 - 8:
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- "A single act of sexual penetration, without consent, on a stranger, following a breaking into her dwelling house, at night, and placing her under restraint, is an offence well within the upper range. The total effective term for the act of penetration, the housebreaking and the deprivation of liberty would normally be in excess of seven years. If the terms were to be imposed concurrently the sentence for the act of penetration would be the sentence to reflect all these aggravating circumstances. The facts relating to the offences under consideration are such as to make this 'the worst of the sort' (cf Bensegger v R [1979] WAR 85.)
There is an overall factor which I consider makes clear that there was error and that is that the final sentence of seven years is simply not proportionate to the totality of the criminal behaviour involved. This would indicate that any attempt made to invoke the totality principle has miscarried. The aggregate sentence ultimately imposed must be proportionate to the totality of criminal behaviour involved [see Mill v The Queen (1988) 166 CLR 59, at 62 - 63]."
47 Pidgeon J then referred to the judgment of Ipp J in Jarvis v The Queen (supra) at 207, who said:
"The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312."
48 In Walsh, a substantial credit was given for an early plea of guilty which meant that the complainant was not required to give evidence. This both served the administration of justice and meant that a trial was not necessary. Absent those factors, a total sentence of 18 years would have been imposed. As it was, the sentences for the sexual offences were reduced to imprisonment for 12 years for each offence concurrent with each other. For the deprivation of liberty the sentence imposed was 5 years and for the burglary 2 years, both concurrent with the sentences for the sexual offences. The sentence for the first act of housebreaking was cumulative, but limited to 2 years on account of the totality principle. Had it stood alone it would have called for a higher sentence. A credit for time spent in custody of 9 months reduced the burglary sentence further to
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- a sentence of 1 year and 3 months. The total sentence substituted was 13 years and 3 months.
49 In Marriott v The Queen, unreported; CCA SCt of WA; Library No 970470; 19 September 1997, the Court of Criminal Appeal refused to interfere with sentences of a total of 16 years' imprisonment for 40 offences against three daughters confirmed as being not excessive. The principles in Jarvis v The Queen (1993) 20 WAR 201 were also applied in McLean v The Queen [1999] WASCA 209.
50 In Herbert v The Queen (2003) 27 WAR 330, consideration was given to the concept that the severity of a sentence increases exponentially as the sentence increases in length. In that case, the applicant had been sentenced to a total term of imprisonment of 15 years in respect of some 33 offences committed between 15 September 2000 and 31 May 2001. Had the sentences been made cumulative on one another, they would have aggregated a total of 58 years and 1 month. Some of the sentences were made concurrent on account of the totality principle and the number of cumulative sentences was limited to bring about an aggregate of 15 years. In that case, it was submitted on behalf of the applicant that the total sentence of 15 years imposed was too long and offended the totality principle. Specific reliance was placed upon the rationale of the totality principle stated by Ipp J in Jarvis v The Queen (supra) at 207 where his Honour said:
"While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos [Vaitos(1981) 4 A Crim R 238] at [301] by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R (No 2) (1988) 164 CLR 465; Evangelista and Laporte [unreported; CCA SCt of WA; Library No 920051; 30 January 1992] v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even
(Page 20)
- though the individual sentences are proportionate to the gravity of the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of 7 years may be appropriate for one set of crimes and a sentence of 8 years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved, simply because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison."
51 In Herbert at [12]-[18] I endeavoured to explain what I considered his Honour meant by saying that "the severity of a term of imprisonment increases exponentially as it increases in length".
52 In my opinion, the fact that the applicant was in a relationship with P's mother, with whom he lived along with the two complainants, put him in a position of trust as a de facto parent. I am also of the opinion that looked at in isolation the totality of the sentences imposed on the applicant was clearly within the range of discretion open to Eaton DCJ, who sentenced the applicant for the offences committed on the complainant P. I am also of the opinion that each of the individual sentences was clearly within the range of sentences commonly imposed for such offences.
53 Furthermore, a total sentence of 8 years for the relevant offences could not be said to be manifestly excessive, particularly taking into account the age of the complainant P at which the prolonged course of offending commenced.
54 As will appear the critical issue raised in the appeal is whether the total of the sentences imposed for both sets of offences committed by the applicant was such as to infringe the totality principle.
CCA 134 of 2004
55 In the meantime, the applicant was convicted after a trial on 1 July 2004 in the District Court at Perth of the following offences against P's sister, "J":
(1) One count of unlawfully and indecently dealing with a child under the age of 14 years on a date unknown between 31 December 1983 and 24 November 1984;
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- (2) two counts of unlawfully and indecently dealing with a girl under the age of 16 years on a date unknown between 17 February 1985 and 24 November 1985;
(3) one count of inciting a girl under the age of 16 years to unlawfully and indecently deal with him on a date unknown between 1 April 1986 and 24 November 1986.
(4) one count of sexual penetration without consent of a person under the age of 16 years on a date unknown between 1 April 1986 and 24 November 1986.
(5) one count of unlawful and indecent assault on a date unknown between 30 November 1990 and 1 March 1991; and
(6) one count of sexual penetration without consent on a date unknown between 1 December 1991 and 1 March 1992.
56 On 29 July 2004, the applicant was sentenced by Nisbet DCJ to imprisonment for a total of 8 years (with eligibility for parole) to be served cumulatively upon the total sentence of 8 years' imprisonment the applicant was sentenced to serve on 24 June 2004 in respect of a separate trial involving J's sister, P.
57 At the hearing of the application for leave to appeal, counsel for the applicant was given leave to amend the grounds of this appeal by substituting the following grounds:
"1. The sentence of 8 years imprisonment with parole (cumulative upon a term of 8 years with parole imposed on 24 June 2004 in the Perth District Court for similar offences) was in all the circumstances manifestly excessive.
PARTICULARS
2. In sentencing the Applicant the Learned Sentencing Judge failed to take into account:
(a) the totality of the sentence which the Applicant would have to serve before becoming eligible for parole;
(Page 22)
- (b) the fact that the order that the Applicant be eligible for parole would have no practical effect upon the sentence;
(c) the Applicant's good antecedents and prospects for rehabilitation;
(d) the substantial delay in bringing the prosecution;
(e) the fact that the total sentence imposed upon the Applicant was the equivalent of a 24 year sentence of imprisonment prior to the amendments to the Sentencing Act 1995.
- 3. The Learned Sentencing Judge erred in not reducing what may have been an appropriate sentence to take into account the principle of totality.
4. The Learned Sentencing Judge erred by failing to state in open court the minimum period the applicant would serve in custody in respect of the aggregate terms of imprisonment then to be served."
58 In his sentencing remarks, Nisbet DCJ noted that on Monday, 28 June 2004, the applicant had pleaded not guilty to an indictment containing 10 counts of sexual abuse of the applicant's stepdaughter J.
59 The applicant was subsequently found guilty on counts 2, 3, 4, 7, 8, 9 and 10 on the indictment. The maximum penalties for these offences at the relevant time the offences were committed were:
Count 2 - unlawful and indecent dealing with a child under the age of 14 years contrary to s 183 of the Code – imprisonment for 7 years;
Counts 3, 4 and 7 - unlawful and indecent dealing with a girl under the age of 16 years contrary to s 189 of the Code - imprisonment for 4 years.
Count 8 - sexual penetration without consent of a child under the age of 16 years contrary to s 324E of the Code -imprisonment for 20 years.
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- Count 9 - unlawful and indecent dealing contrary to s 324 of the Code as it then stood, the maximum penalty was imprisonment for 4 years.
Count 10 - sexual penetration without consent of an adult contrary to s 324D of the Code - imprisonment for 14 years.
60 In sentencing the applicant, the learned Judge said:
"The facts surrounding your convictions are particularly disgusting. They are representative of a history of sexual abuse of the complainant who was your stepdaughter. You secured her silence with threats of intimidation over several years. At the same time you were sexually molesting her younger sister, [P], although on the evidence I must make it plain that there was no evidence that either knew of the assaults being perpetrated upon the other until well after they had ceased.
On count 2, when the complainant's mother was away studying you came into the complainant's room and put your hand down her pyjamas and her underpants and began rubbing her clitoris. On counts 3 and 4, in the early morning you woke the complainant and began fondling her breasts, then moving your hands down under her clothing and inserting your finger into her vagina. As the complainant's nipples became erect, you told her that she must be enjoying what you were doing and that it was acceptable for her to enjoy your depraved attentions.
On count 7 you asked the complainant if she had ever 'whacked anyone off' and when she said no, you told her that she should learn and you put her hand on your erect penis and had her masturbate you. You then forced her legs apart, rolled on top of her and had sexual intercourse with her, ejaculating inside her. This is the crime the subject of count 8 on the indictment. The complainant was protesting and telling you that she could get pregnant and you told her she couldn't get pregnant because you had had a vasectomy. The complainant was, until then, a virgin. She was not even 16 years old.
In count 9, using the opportunity afforded by assisting the complainant to get some furniture you grabbed her by the head and tried to push her head down on your penis in order to force her to perform fellatio upon you. The complainant resisted and fortunately the act was incomplete.
(Page 24)
- Finally, with regard to count 10, you set up a visit to the casino with your daughter [L] and her then boyfriend and invited the complainant to participate. You plied her with drink throughout the night; got her drunk; took her back to your motel room where she was under the belief that she would have a room to herself, when you forced her onto the bed and raped her. Only the fact that you were too drunk prevented the rape from being carried through to completion.
Looking at these facts, it is difficult to distinguish between counts 8 and 10 in their seriousness. In count 8 the complainant was under 16 and a virgin, was living in your house and under your control and you were in a position of trust over her. You had manipulated her presence in the house during a period of separation from her mother on the pretext of having her sleep over because she would be closer to her weekend employment than if she had stayed with her mother, who had left you a little time previously and set up a home on her own.
In count 10 this was a deliberate planned attack on an adult female over whom you were still able to exercise some control. Your activities are disgusting and perverted. I did not have to read your stepdaughter's victim impact statement to realise what an appalling effect your crimes have had upon her life; I saw it for myself in the witness box when she gave evidence against you. You have destroyed her. Her victim impact statement merely confirms what I was able to see for myself in court."
61 The learned Judge then proceeded to review the applicant's personal circumstances.
62 His Honour said that while the applicant was previously of good character, not having any convictions except for a previous driving offence, he noted that previous good character "doesn't count for much when it comes to sentencing for sex crimes". His Honour also noted that there was no contrition; no co-operation with the police and no apology to the applicant's victims. He noted that the applicant did not:
"… waste any opportunity to belittle the complainant as a liar, a drug addict and a cheat when [he] gave evidence in [his] defence. [The applicant] accused [the complainant] of colluding with her mother to bring [him] down and [his] attitude was one that [he] had nothing but contempt for [his] victim."
(Page 25)
63 The learned Judge considered that the crimes committed by the applicant called for a strong deterrent sentence because the applicant had "a predatory personality" and represented "a danger to the community". His Honour noted that the trial in respect of the offences committed against J immediately followed his convictions for sexual offences against her younger sister P in respect of four counts of indecently dealing with her and three counts of sexual penetration when P was under 16 and possibly as young as 12.
64 Nisbet DCJ referred to the sentences imposed by Eaton DCJ, noting that in both cases the offences were "representative of a long period of systematic defilement of young girls who thought they had found what they were looking for, a father. This demonstrated the extent of your breach of their trust."
65 The learned Judge then proceeded to sentence the applicant to sentences which were each reduced by one-third in accordance with the transitional provisions in Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) resulting in sentences of 2 years and 8 months on count 2; 16 months on counts 3 and 7; 8 years on count 8 (which his Honour described as the most serious of all of the offences); 12 months on count 9; and on count 10, imprisonment for 6 years.
66 His Honour then applied the totality principle by directing that all of the sentences be served concurrently producing a total term of imprisonment of 8 years. Finally, his Honour directed that the sentences so imposed be served cumulatively upon the terms of imprisonment the applicant was currently serving in respect of the offences committed in respect of the complainant P. The applicant was made eligible for parole in respect of each of the sentences.
67 At the time the applicant was sentenced for the second series of offences, the State had conceded on 29 July 2004 that it was not in the public interest to proceed further with counts 1 and 5 on the indictment. A nolle prosequi was then entered, reserving the right to reinstate those counts in the event of a retrial.
68 The result was that the total of the sentences imposed by Eaton DCJ and Nisbet DCJ for all the offences was imprisonment for 16 years with eligibility for parole. It is in this context that the applicant applied for leave to appeal against the sentences imposed in respect of both series of offences.
(Page 26)
69 During the hearing of the applications, there was a discussion regarding the minimum term or terms that the applicant would be required to serve, given the sentence of 8 years imposed on 24 June 2004 and the further cumulative sentence of 8 years imposed on 28 July 2004. In the result, the parties were directed to file further written submissions in relation to this matter.
70 Section 93(1) of the Sentencing Act 1995 (WA) ("the Act") provides that:
"(1) Subject to section 94, a prisoner serving a parole term is eligible to be released on parole -
(a) if the term served is 4 years or less - when he or she has served one-half of the term;or
(b) if the term served is more than 4 years - when he or she has served 2 years less than the term."
"(1) In the case of a prisoner serving 2 or more parole terms -
(a) the time when he or she is eligible to be released on parole; and
(b) the parole period for such a prisoner,
are to be calculated by reference to the aggregate of those terms, but only if under subsection (3) or (4) those terms are to be aggregated."
72 Section 94(3) provides that:
"A parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of subsection (1) unless it is to be served partly concurrently with that other term."
73 As both the sentences imposed on the applicant were pronounced subsequent to the coming into force of the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), it follows that the sentences imposed on the applicant must be aggregated so that the minimum term is 2 years less than the aggregate of the two sentences of
(Page 27)
- 8 years. The result is that the minimum term the applicant will be required to serve is 14 years.
74 In this context, it is important to note that the table following s 94 of the Act, which purports to give an example of the calculation of the effect of the imposition of cumulative prison terms of 4 years and 6 years, suggests that the non-parole period for the aggregate of 10 years is 5 years. With the greatest respect to those responsible for the drafting of the example, the table is incorrect. It is inconsistent with the substantive provision in s 94(1)(b).
75 It follows, therefore, that in this case the parole terms should be aggregated. This conclusion is reinforced by s 94 (6) which provides that:
"For the purposes of applying this section a reference in this Part or in the Sentence Administration Act 2003 to a prisoner serving a parole term is, where necessary, to be taken as including a reference to a prisoner serving more than one parole term and in such a case, if under this section the terms can be aggregated, the reference to the term is to be taken as being a reference to the aggregate of the terms."
76 This confirms that the applicant will be eligible for parole in respect of the sentences imposed after serving a total of 14 years.
77 Furthermore, s 7(2)(b) of the Sentence Administration Act 2003 (WA) relevantly provides for the order in which a prisoner is to serve two or more fixed terms of imprisonment as follows:
"… subject to section 94 of the Sentencing Act 1995 and subsection (3), the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another."
78 In the present case, the terms are to be served cumulatively so that the applicant will be eligible for release on parole after he serves the cumulative terms less 2 years. Section 9(2) of the Sentence Administration Act 2003 (WA) provides that:
"Any period that a prisoner spends in custody while he or she is appealing against a conviction or sentence counts as time served in respect of any term that he or she is then serving, but not in respect of any other term he or she is liable to serve."
(Page 28)
79 These various provisions are all consistent with the conclusion that the applicant will be eligible for release on parole when he has served the cumulative term of 16 years less 2 years. It is not material that the sentences were imposed at different times or by different Judges.
80 In my opinion, it has not been demonstrated that any of the sentences imposed by Eaton DCJ and Nisbet DCJ in respect of the offences committed against P and J, whether considered individually or cumulatively, were manifestly excessive. The only question which arises is whether the end result, namely, a total sentence of 16 years with eligibility for parole was manifestly excessive. In my view, the sustained and repeated offences committed against these two young girls, over an extended period of years, with the very serious consequences for them, by the person who was their stepfather and in a position of trust, were extremely grave, bearing in mind the representative character of the specific counts.
81 The principles to be applied in an appeal against sentence were authoritatively stated by the High Court in Lowndes v The Queen (1999) 195 CLR 665 at [15] in a unanimous judgment of all seven members of the Court. They were recently restated and applied in "VIM" v The State of Western Australia [2005] WASCA 233 in a unanimous judgment of the Court of Appeal (Wheeler JA, Roberts-Smith JA and Miller AJA) namely, that an appellate court will not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised the discretion in a different way from that adopted by the sentencing Judge. It must be shown that the sentencing Judge failed to properly exercise his or her discretion by imposing a sentence which is outside the range of a sound exercise of the sentencing discretion or is the product of some identifiable error. (See also R v Podirsky (supra) at 406 per Malcolm CJ (with whom Wallace and Pidgeson JJ agreed) and Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at [61] – [62].
82 In "VIM" at [285], their Honours reviewed the usual range of sentences in cases of sexual offending against children in the context of an examination of the effects of such offending. Where there are multiple offences involving young children, consideration of the totality principle is necessary. In this context, their Honours said at [293] – [295]:
"In cases where the offender is not a family member or trusted adult, even in a loose sense, the effect upon family relationships and the child's sense of trust is not such a significant factor, but, depending upon the circumstances, there can nevertheless be
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- very serious consequences in terms of loss of confidence in dealing with others, and damage to self-esteem, even where there are not overt threats, force or violence.
The effects to which we have referred are particularly evident in cases where sexual offending against the child has been frequent and/or has occurred over a long period. It hardly needs to be said that all sexual offending against a child is reprehensible. However, where there is an isolated occurrence, then, depending upon the circumstances, it may well be that, with support, a child will be able to overcome the experience, in the way that other adverse events can be largely overcome. The difference in cases of prolonged offending against a child is that the whole of the victim's childhood and potential for normal development is taken from him or her. When one comes to consider totality considerations, then, a relevant factor is that, as the amount of offending increases, so the likelihood of very significant harm to the victim or victims of the offending is dramatically increased. In the majority of such cases, cumulation of sentences is therefore to be expected, to reflect the increasing severity of effect upon the victim; as well as to reflect the fact that the offender has not simply given way to an impulse on an occasion, but has chosen repeatedly to commit serious offences.
Cumulation of sentence is also to be expected where there is more than one victim. That is consistent with patterns of sentencing in relation to other types of offences. In such cases, we note, however, the frequently cited observation that totality is of marginal importance 'particularly where each victim is aware of the offending conduct perpetrated on the other' (DeLuce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996, per Ipp J). One can imagine that there will be cases in which one child's awareness of the offending against another will be of significance (eg, where, as is not unusual in such cases, there is particular deviance, or violence in order to dominate more than one child at a time, or where an older child has the additional burden of feeling himself or herself helpless to protect the younger). However, it is difficult to regard such awareness, or lack of it, as necessarily making one case more or less serious than another, since where each child believes that he or she is the only victim, there may be an increased sense of isolation and shame felt by each."
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83 In the present case, the offender was the de facto partner of the mother of the two victims. The mother of the victims was not aware of the offending until there was disclosure. Neither of the two girls was aware of the offences committed on the other. This clearly must have increased the isolation and shame referred to by each of the victims.
84 In recent times, as their Honours noted in "VIM" at [296], Pearce v The Queen (1998) 194 CLR 610 requires the sentencing Judge to first impose an appropriate sentence for each offence and then take the totality principle into account.
85 Significantly, in "VIM" at [312] their Honours said:
"The most that can be said, perhaps, is that, after the transitional provisions the authorities reviewed suggest an aggregate sentence of 10 to 19 years would be imposed after trial in most cases of very serious repeated sexual offending where the offences are representative of a course of conduct."
86 In my view, this is not a case in which it can be said that the total of the sentences of 16 years for the two separate series of offences can be classified as crushing. In my opinion, it is not possible to detect any error. The sentences imposed, looked at individually or in total for both series of offences, were well within an appropriate range for the totality of the offences committed by the applicant. For these reasons, while I consider leave to appeal should be granted, I would dismiss the appeal.
87 PULLIN JA: The appellant was convicted of the sexual penetration without consent and rape of his two stepdaughters. In each case there was a trial which resulted in convictions on those charges as well as convictions for indecent dealing. The aggregate sentence in relation to one group of offences against one daughter was 8 years and the aggregate sentence in relation to the other group of offences against his other daughter was also 8 years. Judge Eaton dealt with the first group of offences and sentenced the appellant the day after the trial. Judge Nisbet then dealt with the trial concerning the other daughter a month later and sentenced after the convictions in relation to that trial. Judge Nisbet mentioned the totality principle in relation to the group of offences he was dealing with, but did not expressly say that he was having regard to totality, bearing in mind the sentences imposed by Judge Eaton. He made the sentences he imposed cumulative upon those imposed by Judge Eaton. The result is that the appellant must serve an aggregate term of 16 years.
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88 I have read Murray AJA's reasons for decision. I agree with his Honour that Nisbet DCJ erred in imposing an 8 year sentence cumulative on the earlier sentence. I agree with Murray AJA that the aggregate term of 16 years is too severe for the reasons he gives. It is well recognised that the severity of a sentence increases exponentially with its length. Thus the addition of a second sentence of 8 years to be served cumulatively was a more severe sentence (in effect if not nominally) than the first sentence of 8 years. A reduction to 14 years is within the range suggested in "VIM" v The State of Western Australia [2005] WASCA 233 for a sentence after trial and after the transitional provisions. See [312].
89 The question is how this reduction is to be achieved. I would not make any adjustment to the sentences imposed by Eaton DCJ. I would dismiss the appeal against those sentences. When it comes to the judgment of Nisbet DCJ, it would be possible to leave the aggregate sentence at 8 years and then make that sentence partly concurrent on the sentence imposed by Eaton DCJ. If the second sentence was ordered to commence after 6 years of the sentence imposed by Eaton DCJ, then the result would be a sentence of 14 years. Alternatively, the sentence imposed by Nisbet DCJ on count 8 could be reduced from 8 years to 6 years, with all other sentences being left undisturbed and all other sentences being served concurrently with the sentence in relation to count 8, but with the aggregate sentence of 6 years being ordered to be served cumulatively on the sentence imposed by Eaton DCJ.
90 In Johnson v The Queen (2004) 78 ALJR 616 at [26], Gummow, Callinan and Heydon JJ expressed a preference for what they called the "orthodox" method of adjusting sentences to take account of totality issues. The orthodox method is to fix the appropriate sentence for each offence or offences and then to make orders for concurrency or partial concurrency to arrive at an appropriate overall sentence. However, their Honours in Johnson acknowledged that a reduction of the proper sentence was a permissible method of dealing with totality issues. They said that neither method, ie the orthodox method or the alternative method that I have suggested, was "immutable". Their Honours said that Judges should be allowed as much flexibility in sentencing as is consonant with consistency of approach and accords with the statutory regime under which the sentence is effected. See Worthington v The State of Western Australia [2005] WASCA 72 at [48]. I agree with Murray AJA's method of achieving the reduction. It follows the "orthodox" method of sentencing.
(Page 32)
Discharge of the Court's duty under s 34(2) of the Sentencing Act
91 Following sentencing or resentencing a duty is imposed on the Court by s 34(2) of the Sentencing Act to state in open court:
"… the minimum period that the offender, as a result of the sentence and the operation of this Act, will serve in custody in respect of the term or, if more than one term is imposed, in respect of the aggregate of the terms."
92 Section 34(3) provides that:
"A court need not take into account any other sentence of imprisonment imposed previously on the offender which the offender is serving or has yet to serve."
93 If partial concurrency is ordered however, it is unavoidable that the Judge take into account the earlier sentence if he or she is to inform the offender about the minimum period he or she must serve before becoming eligible for parole. The reasons for this emerge below. The task is unnecessarily complicated by some conflicting provisions within the legislation.
94 It may seem a matter of common-sense that two 8 year terms, whether served cumulatively or partly concurrently, would be aggregated or partially aggregated for the purpose of the calculation of the parole period and the time when a person may be released on parole. In the case of partly concurrent sentences imposed at the same time, the non-overlapping portions of the sentences can be aggregated. However, in circumstances where a sentence is made partly concurrent on a sentence imposed earlier, s 94(1) (which provides for aggregation of sentences for parole purposes in some circumstances) does not apply. This is because s 94(1) only applies if s 94(3) or (4) apply. Neither subsection applies in relation to a second sentence which is imposed at a different time and where there is partial concurrency.
95 The question then is whether s 7(2) of the Sentence Administration Act explains what happens in the circumstances where two 8 year terms are to be served partly concurrently. Section 7(2) contains the phrase "subject to section 94 of the Sentencing Act 1995". The existence of that phrase does not require a conclusion that there is necessarily a conflict between the two provisions. See The Shop, Distribution and Allied Employees' Association of Western Australia v Williams [2005] WASCA 155 at [15]. If there is a clash or inconsistency, then of course
(Page 33)
- the phrase "subject to s 94" indicates that s 94 is to prevail. There is no inconsistency with s 94(1), at least if the section is read without reference to the examples in the table. This is because, as I have already said, s 94(1) does not apply in the present case. The question is however, whether the third example in the table to s 94, if applied, would produce conflict. The difficulty with the third example, and indeed, all the examples in the table to s 94, is that they conflict with s 93. I say they conflict, rather than say the examples are wrong, because the Interpretation Act s 31(2) makes the examples part of the Act. They cannot be ignored.
96 The first example suggests that the person would be eligible for parole after 3 years of a 6 year sentence. That conflicts with s 93(1)(b) which provides that the person would be eligible for parole after 4 years. The second example given refers to a 10 year sentence and suggests that the person would be eligible for parole after half of that period, namely 5 years. This also conflicts with s 93(1)(b) which provides that he would be eligible for parole after 8 years. The third example also conflicts with s 93(1)(b) because the non-parole period for a 6 year sentence according to s 93(1)(b) is 4 years, not 3 years as stated in the example, and the "result" would be that he would serve 5 years not 4 years before being eligible for parole. If the third example were altered to reflect the provisions of s 93 it would read:
|
Term 1 |
Term 2 |
Concurrent etc. |
|
|
|
1 year of term 1 to be served before term 2 begins |
Serve 1 year of term 1. Then begin serving term 2 concurrently with rest of term 1. Non-parole period on term 2 = Result: serve If not paroled, serve 7 years. |
97 The method in the third example makes sense. It is the detail which does not reflect what is contained in s 93. If the method used in the third
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- example in the table to s 94 is applied to the present circumstances, that is two 8 year terms which are to be served partly concurrently, then the appellant would serve 6 years of the first 8 year sentence and then serve the second 8 year sentence - a total of 14 years. He will be eligible for parole after 12 years. So far the situation appears clear, but this result potentially conflicts with s 7 of the Sentence Administration Act. I say potentially conflicts with s 7 because two interpretations of that section are open and only if one of these interpretations is adopted will there be conflict. If the correct interpretation is the one which produces conflict, then the third example in s 94 will prevail because of the phrase in s 7 "subject to section 94".
98 At this point I should digress to explain that there is an explanation for the inconsistency between s 93 and the examples in s 94. The Sentencing Legislation Amendment and Repeal Bill, as it was originally introduced and made the subject of the Second Reading Speech in the Legislative Assembly on 15 August 2002, set forth in cl 20 the proposed s 93 and s 94. The proposed s 93 provided that prisoners made eligible for parole should become eligible for parole after serving half of their sentence, no matter what the length of the sentence. The Attorney General in the Second Reading Speech on 15 August 2002 said:
"The Bill contemplates that a prisoner eligible for parole must serve at least 50 per cent of his or her sentence before becoming eligible for parole. … In the interests of clarity and public understanding, the Bill adopts a consistent approach to the treatment of parole throughout by applying a uniform 50 per cent requirement. …"
99 The explanatory memorandum said concerning cl 20 that:
"The new section 93 is as a result of the changes to the period required to be served before eligibility for parole. Rather than having to serve either one-third or two years less than two-thirds of the term, offenders will have to serve at least one-half of the term. If the offender is not paroled then the whole of the term is to be served."
100 Section 94, as proposed by cl 20, was in the same form as it now stands. However, the Bill, after it went to the Legislative Council, was returned to the lower house on 26 June 2003 with proposed amendments. One of the amendments proposed by the Council was to put s 93 into its present form, ie providing that a person was eligible for parole in relation
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- to sentences of up to 4 years after serving half the term but for longer sentences a person was eligible for parole only when he or she had served 2 years less than the full term. Those amendments were agreed to by the Legislative Assembly on 26 June 2003. No amendments were made to s 94. The changes to s 93 made without making changes to the examples in s 94 created the inconsistency. The same can be said of the inconsistency between s 93 and s 28 of the Sentence Administration Act 2003 (WA), which contains a table setting out supervised periods for different parole periods, including periods greater than 24 months. This section remains the same as when first introduced by cl 28 of the Sentence Administration Bill, on 15 August 2002. These inconsistencies must have been an oversight because, when the Attorney General moved on 26 June 2003 that the amendments made by the Council be agreed to in the Assembly, he said:
"In the legislation introduced and debated in this House the Government sought to provide one simply understood system of eligibility for parole; that with the abolition of remission, every prisoner would spend a minimum of half his time in gaol and the balance on parole. The Legislative Council did not agree with that approach. There were strong arguments. That is why the government is happy to support the Council's amendment that provides that no prisoner should spend more than two years on parole. A person who gets a head sentence of more than [sic] four years will spend two years in prison and two years on parole. Someone who gets a 20 year sentence will spend 18 years in prison and two years on parole. Every minute of every sentence that is imposed will be spent on either parole or in prison, with a maximum of two years on parole. The legislation will be a bit more difficult for the public to understand and I am disappointed to that extent. Nevertheless, in totality, it is a significant reform of the sentencing laws of Western Australia and for those reasons I am happy to indicate support for the amendments."
"(2) A prisoner sentenced to serve 2 or more fixed terms is to serve those terms in this order -
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- (a) firstly, those that are not parole terms are to be served according to whether they are concurrent, partly concurrent or cumulative with one another;
(b) secondly, subject to section 94 of the Sentencing Act 1995 and subsection (3), the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another;
(c) thirdly, subject to section 94 of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served -
(i) cumulatively if the terms are cumulative;
(ii) concurrently if the terms are concurrent or partly concurrent."
103 The first is that s 7(2)(b) requires partially concurrent terms to be served so that their non-parole periods overlap by the length of the partial concurrency. In the case of two 8 year parole terms (imposed at different times) made partially concurrent, with the Judge imposing the second sentence ordering that it commence after 6 years of the first term had been served then, applying one meaning of s 7(2)(b), the non-parole period of term 2 would begin after 4 years of the non-parole period of term 1. In other words, the non-parole periods in each sentence are to be separated out and dealt with separately. This would produce a total non-parole period of 10 years, therefore suggesting that the prisoner, when released on parole, would spend 4 years on parole.
104 The second interpretation is that partially concurrent terms are to be served so that the full parole terms overlap by the length of the partial concurrency. In other words the non-parole periods are either concurrent, partly concurrent or cumulative with one another insofar as that occurs because they are part of the overlapping parole terms. So, for two 8 year parole terms (imposed at different times) made partially concurrent, and the Judge imposing the second sentence ordering that the second term commence after 6 years of term 1 had been served then the total
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- non-parole period would be 12 years, leaving the prisoner to serve 2 years on parole. In that example, although the sentences are partially concurrent the non-parole periods would be cumulative.
105 In my opinion, the second interpretation is to be preferred because there are four problems with the first interpretation.
106 First, in the example I have given, the result would conflict with the third example in the table to s 94 Sentencing Act 1995 which I have set out above. That example in s 94 provides that partly concurrent terms are to be served so that the parole terms (and not the non-parole periods) overlap by the length of the partial concurrency. That would not remain a problem because s 7(2)(b) is "subject to s 94 of the Sentencing Act 1995" and the example in s 94 would therefore prevail in the event of inconsistency.
107 Secondly, and more importantly, the first interpretation would operate to contradict a Judge's order in certain circumstances. This would be so where a partly concurrent second term of 8 years is ordered to commence after 6 years of an earlier 8 year term had been served. Under the first interpretation the non-parole periods would be served partly concurrently, with the result that the second term would commence after only 4 years of the first term has been served. Thus, the actual time to be served before the second term commenced would be less than the period of 6 years set by the sentencing Judge.
108 Thirdly, the first interpretation cannot operate where the length of the partial concurrency ordered exceeds the non-parole period of the first term. For example, a term of 4 years and a second term of 6 years with a partial concurrency of 3 years would require that the non-parole periods of 4 years on the second sentence would have to overlap the 2 year non-parole period on the first sentence by 3 years. This is clearly an impossible result.
109 Fourthly, the first interpretation results in an unexpected reduction of the overall sentence when read with s 7(2)(c). This subsection provides that the balance of any parole terms after the end of any non-parole periods are to be served cumulatively if the terms are cumulative, and concurrently if the terms are concurrent or partly concurrent. To return to the earlier example of two 8 year terms made partially concurrent after 6 years: if for some reason the prisoner is not released on parole after serving the two non-parole periods of 6 years partially concurrently as the first interpretation would require, s 7(2)(c) would require that the
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- remaining 2 years on each term be served concurrently. The prisoner would therefore only serve a total aggregate sentence of 12 years, not 14 years as ordered by the sentencing Judge.
110 Because s 7(2)(b) of the Sentence Administration Act contains ambiguity, consideration may be given to any extrinsic material capable of assisting in ascertaining the meaning: s 19 Interpretation Act 1984.
111 Parliamentary debate is helpful. The statement made by the Attorney General in the Legislative Assembly (supra) after the Bill returned from the Council, shows that s 93(1)(b) was inserted to ensure "that no prisoner should spend more than two years on parole".
112 As explained above, the first interpretation of s 7(2)(b) of the Sentence Administration Act could result in total parole periods exceeding 2 years. The preferred meaning of s 7(2) should be one which is consistent with Parliament's intention to restrict time spent on parole to a maximum of 2 years. The second interpretation of s 7(2)(b) produces no difficulty of application and is consistent with that intention. I would therefore adopt that interpretation.
113 Having discussed the difficulties associated with the legislation, I now turn to discharge the duty imposed on the Court by reason of s 34(2) of the Sentencing Act 1995 (WA). In my opinion the minimum period that the appellant will serve in custody, in respect of the aggregate term of 14 years, will be 12 years.
The references provided by the appellant
114 I also wish to say something about the book of references which was handed up by counsel for the appellant. It has been held in other cases that references and evidence of good character are not of much value in this type of case. This is partly because of the Janus-like nature of these type of offences. This kind of offender holds out to business associates, friends and other acquaintances an air of respectability, while at home working the destruction of their children's lives. A person can have an undeserved good reputation. This is so in this case. The appellant shows no remorse. He continues to deny that he committed the offences in relation to one of the girls, even though he has been convicted and does not appeal against conviction. In relation to the other stepdaughter, he contends that she initiated the sexual relationship, despite his conviction. These points are revealed in the pre-sentence report. The appellant clearly has a large number of supporters and in the booklet of references they put their names to statements about what they say is the appellant's good
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- character. However, some of the referees disclose that the convictions are still regarded only as "allegations". In my opinion, the failure of any of the referees to refer to the fact of the convictions or to refer to any expression of remorse by the appellant, suggest to me that what the appellant has said to the officer preparing the pre-sentence report is what he also says to family members, acquaintances and friends.
115 A lack of remorse by the perpetrator of this kind of crime can have on-going effects so far as the victim is concerned. The victim of an armed hold-up may suffer psychological effects, but friends and the general community will usually feel sympathy for the victim. They will not blame the victim for being the subject of a hold-up. However, the victim of an inter-familial sexual offence may in some cases not only suffer psychological trauma but also be made to feel that they are somehow responsible for the commission of the offences. If the perpetrator lacks remorse and gathers around them supporters who disapprove of the conduct of the victims in giving evidence in court, then the victims' trauma is made worse because he or she may then be ostracized by family members and friends of the offender. This is one of the reasons why the court gives great weight to the expression of genuine remorse by an offender. An offender who accepts what he has done is wrong, acknowledges the damage that has been done to the victim and expresses remorse is less likely to have family and friends who blame the victim. A plea of guilty may demonstrate remorse and the plea as an expression of genuine remorse will produce a substantially lower sentence than a case where no remorse is expressed. The lack of remorse expressed in this case is the reason why the references are of little value in relation to resentencing.
116 MURRAY AJA: In relation to these two applications for leave to appeal, I have the considerable advantage of reading in draft the reasons for decision of Malcolm CJ. There is little that I would wish to add to what his Honour has written. So far as an extension of time is required I would grant it and I would certainly grant the applicant leave to appeal in each case. What I have to say relates to substantive matters.
117 It is as well to start with the offences committed and the sentences imposed. For present purposes the briefest summary will suffice:
(1) On 24 June 2004 Eaton DCJ sentenced the applicant for a series of sexual offences including an offence of rape and two of sexual penetration. They were all committed against the one complainant, a stepdaughter, P. Five of the offences were committed on the same occasion during 1985, shortly after P's 12th
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- birthday. They were the first of which she had a specific recollection. The other two offences were committed during March or April 1987. They were representative of a course of offending until the complainant was aged 20 or 21.
- Malcolm CJ has set out the sentences imposed. They take account of the transitional provisions contained in Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). That legislation made substantial amendments to the Sentencing Act 1995 (WA) to give effect to a new statutory regime in relation to remissions of sentence and parole eligibility. The amending legislation had effect as from 31 August 2003. It requires the sentencing court to impose a term of imprisonment no longer than ⅔ of the term which would have been imposed under the provisions of the Act prior to their amendment.
The applicant was sentenced to a term of 4 years imprisonment for the offences committed in 1985 and a term of 4 years imprisonment for the offences committed in 1987. The sentences for that second group of offences were imposed concurrently with each other, but cumulatively upon a 4 year term imposed for the rape offence committed in 1985, so the aggregate term was 1 of 8 years imprisonment to commence from 23 June 2004, with an order for parole eligibility.
(2) On 1 July 2004, the applicant was convicted after a trial by jury of a further seven sexual offences committed against P's sister, J. These were of various kinds, but included two offences of sexual penetration without consent. They were committed on five separate occasions from when J was 13 to when she was 21 from 1984 to 1992. Again these offences were representative of a sustained course of sexual abuse of J.
Nisbet DCJ sentenced the applicant on 29 July 2004 to various sentences of imprisonment, again taking into account the transitional provisions upon the amendment of the Sentencing Act. The longest term imposed for an individual offence was 8 years imprisonment for one of the acts of sexual penetration. All the sentences were directed to be served concurrently with each other, but cumulatively upon the sentences imposed by Eaton DCJ on 24 June. Again, a parole eligibility order was made. His Honour expressly imposed the sentences concurrently upon the application of the totality principle. However he observed that the offences were separate and distinct from those involving the complainant's
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- sister P. Hence the order for cumulative service of these sentences upon those imposed for offences against P.
118 In relation to the sentences imposed by Eaton DCJ on 24 June 2004, the appeal is grounded upon the simple proposition that the sentences imposed, in their aggregate, were manifestly excessive. The same proposition is put in respect of the sentences imposed on 29 July 2004, particularly having regard to the order that those sentences, although to be served concurrently with each other, were to be served cumulatively upon the sentences imposed earlier. In argument counsel rightly made it clear that the proposition that the sentences were manifestly excessive, individually or in their respective aggregates, was difficult to maintain. The facts and circumstances surrounding the individual offences and the individual sentences imposed have been discussed at length by Malcolm CJ. I have nothing to add to his Honour's reasons in that regard.
119 In my opinion the sentences and the aggregate terms imposed by each of Eaton DCJ and Nisbet DCJ were well merited. In the circumstances of their commission described by Malcolm CJ, the offences were dreadfully serious. They were representative of long periods of abuse. Their commission blighted the lives of the complainants and did them enormous harm. The commission of the offences involved a serious breach of the trust which the complainants ought to have been able to repose in the applicant as their de facto father.
120 Yet there was no remorse, the applicant did not co-operate with investigating authorities and one of the trial Judges commented upon the attack made upon the character of one complainant, who was accused of conspiring with her mother to bring false accusations against the applicant. There was the fact that the applicant was otherwise of good character but, as has often been held in cases of intra-familial sexual offences, such matters carry little weight in cases where the predominant consideration in sentencing is general deterrence, as well as punishment for the grave offences committed: Bell v The Queen [2001] WASCA 40 per Anderson J at [12]. Having, since these reasons were compiled, read the judgment of Pullin JA, I would expressly associate myself with his Honour's observations about the lack of remorse and the references provided.
121 Since these appeals were heard the Court of Appeal has given judgment in the case "VIM" v The State of Western Australia [2005] WASCA 233. There the offender was the stepfather of two female complainants against whom 31 offences had been committed over an 8 year period. The State appealed successfully against an aggregate term
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- of 6 years imprisonment imposed by the one trial Judge. In allowing that appeal the Court reviewed the development of the law in respect of the imposition of sentences in cases of this general kind, starting from the judgment of Anderson J in Woods v The Queen (1994) 14 WAR 341, and discussing relevant considerations impacting upon the sentencing process at [285] - [303]. The cases reviewed by the Court were set out in a schedule to the judgment. There were 25 of them, occurring between 1999 and 2005. All were cases where there was a plea of guilty and all involved more than five sexual offences against one child or against a number of children.
122 While the Court accepted that each case turned very much on its own facts and that there was no tariff, the range of sentences was from suspended terms to one term of 20 years imprisonment, with about ⅔ of the cases involving aggregate terms of 10 – 19 years. The Court commented that one would then expect to see, prior to the transitional provisions, a range of up to 30 years imprisonment, with a most common term of between 12¢ and 15 years in cases where there were pleas of guilty. Of course the ⅓ scaling down process would need to be applied as the result of the 2003 amendments to the Sentencing Act to which I have previously referred. The case did not isolate the impact upon the sentencing process of totality considerations, whether in relation to sentences imposed by one Judge or more than one Judge.
123 The exercise was not repeated in relation to cases which went to trial, the number of cases available to be sampled being considered to be too small. The Court preferred then to "scale up" the sentences imposed in cases where there were no pleas of guilty and at [312] the Court said:
"The most that can be said, perhaps, is that, after the transitional provisions the authorities reviewed suggest an aggregate sentence of 10 to 19 years would be imposed after trial in most cases of very serious repeated sexual offending where the offences are representative of a course of conduct."
124 The Court allowed the appeal and went on to re-sentence the respondent in that case, exercising the restraint due in a successful prosecution appeal against sentence, to an aggregate term of 10 years imprisonment with eligibility for parole.
125 It is sufficient, in light of the discussion above and that of Malcolm CJ, that I would not uphold either appeal on the ground that the sentences imposed on each occasion were, either individually or in their
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- aggregate, manifestly excessive. The sentencing Judges considered appropriately all relevant matters and they overlooked no material consideration. It follows that I would dismiss the appeal CACR 3 of 2005 brought in respect of the sentences imposed by Eaton DCJ on 24 June 2004.
126 In the other appeal CCA 134 of 2004, grounds 2 and 3 set out by Malcolm CJ raise totality considerations. The leading judgment for this Court in relation to the proper application of that principle remains Herbert v The Queen (2003) 27 WAR 330. In the principal judgment, that of Malcolm CJ, the authorities are carefully reviewed and the nature of the principle is clearly expressed, as articulated in relevant decisions of the High Court and the Court of Criminal Appeal. For my part I remain of the view that the nature of the principle is simply the need to ensure that the total term imposed is proportionate to the gravity of the offences involved.
127 I endeavoured to summarise my view in that regard in Jarvis v The Queen (1993) 20 WAR 201 at 211 – 3. Where the court is dealing with a number of sentences imposed on the one occasion, or on more than one occasion, even though there is no link between them, except that the sentences imposed must be served at the one time or consecutively by the one offender, there must be a last look at the sentencing process to ensure that, proper decisions having been taken as an exercise of sentencing discretion in relation to the length of the individual terms and the extent to which they should be served cumulatively or concurrently, the result achieved overall remains proportionate to the gravity of the overall offending.
128 Proportionality between the offending and the punishment imposed, is the result which justifies the punishment for all the purposes for which the sentence is imposed – punishment, the denunciation by the court of the offending behaviour, the need to deter both the particular offender and generally, and the need to provide some degree of protection for the community. Included in that mix of considerations is the desirability of achieving a sentencing result which facilitates, where that is possible, the achievement of the offender's rehabilitation, because in that lies the community's best prospect of protection against a continuation of the offending behaviour.
129 The application of the totality principle seeks to ensure that the gravity of the overall sentence is no more than is necessary to achieve the purposes of the sentencing process, and the court draws back from the
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- imposition of sentences which are so severe that they become "crushing", a positive impediment to achieving the aims of the sentencing process. In that regard, it is recognised that the severity of a sentence increases exponentially with its length. It is a judgment made from the point of view of the offender who must serve the sentence and having regard to the period of time which he must serve. It is recognised that from the point of view of the service of the sentence, a term of 10 years is more than twice as severe as a term of 5 years. The longer the term or aggregate term becomes, the more punitive is its character.
130 There is nothing to suggest that Nisbet DCJ failed to have regard to the application of the totality principle. His Honour said that he did so, and he described what impact in his Honour's reasoning towards sentence the application of that principle had. And yet it seems to me, on purely totality grounds, an aggregate term of 16 years was too severe for the totality of the offending behaviour, bearing in mind that although the offences of which the applicant was convicted were in each case representative of a sustained period of abuse, it was for those offences only that sentence was to be passed.
131 Having regard to all the circumstances referred to in detail by Malcolm CJ and to which I have referred briefly above, those demonstrating the gravity of the offending behaviour as well as those personal to the applicant, it seems to me that an aggregate term of 16 years was too severe and an aggregate term of 14 years imposed upon a man of 56 years of otherwise good character would adequately meet the aims of the sentencing process.
132 As to the appeal against the sentences imposed by Nisbet DCJ on 29 July 2004, having granted leave to appeal I would allow that appeal. I would not however interfere with the individual sentences or the aggregate term imposed on that occasion. Solely for totality reasons I would order that that term and those sentences be served, not entirely cumulatively, although concurrently with each other, but after service of 6 years, the non-parole period of the aggregate term imposed by Eaton DCJ. In other words I would reduce the aggregate term imposed by the two Judges by that means from 16 years imprisonment to 14 years imprisonment. Pursuant to s 34 of the Sentencing Act, I would observe that in respect of that aggregate term the applicant would serve a period of 12 years before becoming eligible for parole.
133 I note in passing that the prosecutor dealt with the concern expressed by Nisbet DCJ that prima facie the offences committed against the two
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- complainants ought to receive the same overall punishment, by saying that the difficulty that that might pose, in terms of the totality of the sentences, might be dealt with by partial accumulation (t/718).
134 In relation to the sentencing by Nisbet DCJ, that leaves me to deal with the combination of ground 2(b) and ground 4, which complain that the trial Judge did not comply with s 34 by stating in open court the minimum period which the applicant would have to serve in respect of the aggregate of the terms imposed. Section 34(2) speaks in that regard of the aggregate of the terms imposed on the one occasion by Nisbet DCJ. By reason of s 34(3) there was no obligation to say what was required to be served having regard to the aggregate terms of imprisonment previously imposed by Eaton DCJ, and the order made by Nisbet DCJ that the aggregate term he imposed was to be served cumulatively upon the earlier sentences, although that might be done.
135 Malcolm CJ has reviewed the provisions of the Sentencing Act and concluded that the aggregation of the two 8 year terms would result in a minimum term to be served before eligibility for parole of 14 years. If that is right, it does indeed mean that the order for parole eligibility had no practical effect on the sentence, as ground 2(b) complains. If that is right, the accumulation of the terms imposed by Nisbet DCJ would have the effect of wiping out or depriving of any practical effect the parole eligibility order made previously by Eaton DCJ. However, as I read the relevant provisions that would not be the effect of the order made and the way in which the sentences were structured.
136 Each of the terms of imprisonment imposed by both of their Honours in this case was, within the meaning of the Sentencing Act 1995, s 85(1), a parole term, a term to which a parole eligibility order applied. I note in passing that by s 85(2), for the purposes of this Part of the Sentencing Act, and for the purposes of the Sentence Administration Act 2003 (WA), "the aggregate of two or more fixed terms is the total effective period of imprisonment imposed on the offender having regard to whether the fixed terms are to be served concurrently or partly concurrently or cumulatively.". So the aggregate is the period of imprisonment imposed, not that part of the aggregate term which the prisoner may serve, or will necessarily serve, under the statutory scheme.
137 By s 93(1)(b) of the Sentencing Act eligibility for parole is fixed by the statute, where the term served is more than 4 years, when the prisoner has served 2 years less than the term imposed. By s 93(2) the process of
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- release, the administrative processes involved and the decision making process required, are governed by Pt 3 of the Sentence Administration Act.
138 Section 94 of the Sentencing Act deals with the aggregation of parole terms. The general rule under s 94(1), where two or more parole terms are to be served, is that the time of eligibility for parole and the parole period are to be calculated by reference to the aggregate of those terms. As to aggregation, s 94(3) deals with the position where two or more parole terms are imposed at the same time, and s 94(4) deals with the situation, which applied in this case, where parole terms are imposed at different times. In short the rule is the same. Aggregation is not to be performed where terms are to be served concurrently or partly concurrently as a result of an order made under s 88(3)(d), when, under s 88(4), the court must specify the period of the first term which is to be served before the second term, the partly concurrent term, is to begin.
139 To understand the effect of the statutory provisions it does not seem to me to matter how you put it. Parole terms are to be aggregated for the purpose of calculating when eligibility for parole occurs and how long the parole period will be. This means they are to be added together and treated as one term of the total length of all the terms for the purpose of the calculation of parole eligibility and the length of the parole period. That will occur when the terms are ordered to be served cumulatively, but not of course when they are ordered to be served concurrently, in which case the longest term imposed will determine when eligibility for parole arrives and how long the parole period is to be.
140 Where there is partial concurrency, then the terms are not aggregated in the sense that they are totally added together, and although the total length of the term will generally be greater because there is only partial concurrency, eligibility for parole, and the length of the parole period, will be calculated on the individual terms, in respect of which, of course, one or more parole periods may be swallowed up by service of a partially concurrent non-parole period.
141 In this regard s 94(5) is important. It provides that under the section and subject to its terms, "a parole term, or an aggregate of parole terms, may be aggregated with the aggregate of two or more other parole terms…". Under s 94(6) it is confirmed that for the purposes of applying the Sentencing Act and the Sentence Administration Act, a reference to a prisoner serving a parole term includes a reference, where appropriate, to a prisoner serving the aggregate of those terms.
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142 The section includes a table, giving examples of its operation in conjunction with s 88 and s 93 and s 7 of the Sentence Administration Act, which deals with the order of service of terms. The table forms part of the section: Interpretation Act 1984 s 31(2). I confess that I find the calculations difficult to understand or to match with my understanding of the effect of the sections I have discussed. But what seems to be at the base of the calculations is that where terms are imposed cumulatively, or where they are partly concurrent, whether imposed on the same occasion or different occasions, the non-parole periods are calculated in relation to the individual terms, or aggregate terms imposed on the one occasion, and themselves aggregated or applied together to get the effective non-parole period in relation to all the terms imposed.
143 As the table is part of the section, the calculations made in that way should, it seems, be used to assist in the interpretation of the provisions. The difficulty is compounded by the fact that in relation to the example of a 6 year term, a non-parole period of 3 years is taken to be applicable, although as I read s 93(1)(b), the non-parole period in that case should clearly be 4 years. In any event, applying the calculations in the table can result in effective parole periods of greater than 2 years.
144 Turning to the relevant provisions of the Sentence Administration Act, which by s 3 of that Act is to be read with the Sentencing Act, I have already mentioned that s 7 deals with the order of service of terms of imprisonment. Relevant to this case is s 7(2)(b), which provides that subject to s 94, where there are two or more fixed terms, "the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another". This provision would seem to me to confirm the impression created by the table in the Sentencing Act, s 94 that where there is full aggregation or in a case of partial concurrency, the non-parole periods of the individual terms or aggregates of terms are to be separately calculated and then served concurrently, partly concurrently or cumulatively, as the case requires.
145 Then, under s 7(2)(c), until the offender is released on parole, he is to serve the balance of any parole terms, cumulatively if the terms themselves are cumulative, or concurrently, or partly concurrently in those other cases. Again the effect might well be that this period, the parole period, may in the final calculation be a period greater than 2 years.
146 That would seem to be confirmed by s 28 of the Sentence Administration Act which involves the concept of "the supervised period
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- of a parole order". Section 28(2) provides a table which relates the supervised period to the parole period for parole terms of varying lengths. Relative to this case, where a parole term is greater than 4 years, the table provides that the parole period may be greater than 2 years but in that case the supervised period will be 2 years. That provision seems to me to be consistent with the way in which the table to s 94 of the Sentencing Act is framed, and the interpretation of the provisions of that section. The Acts provide for the aggregation of non-parole periods of parole terms where those parole terms (which may themselves be aggregates of parole terms imposed on the one occasion) are to be aggregated.
147 If that is correct then the effect of the statutory provisions in this case, in relation to the sentences imposed by Eaton DCJ and Nisbet DCJ respectively, will be as follows. The sentences imposed by Eaton DCJ, to the extent that they were cumulative, would be aggregated and treated as a parole term of 8 years. The same result will occur in relation to the sentences imposed by Nisbet DCJ, which are not aggregated because ordered to be served concurrently. By the application of s 93(1)(b) of the Sentencing Act, each of those parole terms or aggregates of parole terms would have within them non-parole periods of 6 years. As the terms imposed by Nisbet DCJ were ordered to be served cumulatively upon those imposed by Eaton DCJ, the second aggregate term would be aggregated with the first.
148 Applying the table to s 94 shows, as seems to be confirmed by the provisions of the Sentence Administration Act which I have discussed, that the aggregate term would then be 16 years with an aggregate non-parole period of 12 years. If not paroled the applicant would serve the full 16 years. If he was paroled, then, under the Sentence Administration Act s 28, the parole period might be up to 4 years, in which case the supervised period would be 2 years.
149 The discussion of these provisions is, of course, strictly obiter, although it flows out of the grounds identified above which would seem to require the court to identify what should have been said or might have been said in the discharge of the duty imposed on Nisbet DCJ by s 34 of the Sentencing Act. Whatever may be the correct view of these provisions the short point in relation to these grounds is, I agree, that any failure to comply with s 34(2) of the Sentencing Act would not, without more, provide any basis upon which this Court would hold that the exercise of sentencing discretion has miscarried.
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