GJT v The State of Western Australia
[2011] WASCA 263
•30 NOVEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GJT -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 263
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 4 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
FILE NO/S: CACR 59 of 2011
BETWEEN: GJT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :IND 281 of 2011
Catchwords:
Criminal law - Sentencing - Appeal by offender - Four counts of indecent dealing with a child under the age of 13 years - Child was the appellant's de facto child - Offending occurred on two separate occasions - Total effective sentence of 2 years 4 months' immediate imprisonment - Whether individual sentences of immediate imprisonment were manifestly excessive - Whether suspended imprisonment was appropriate - Whether first limb of the totality principle was infringed
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 329(4), s 329(10)(a)
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 24, s 25, s 26, s 39, s 76
Result:
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Mr S F Rafferty
Respondent: Ms S H Linton
Solicitors:
Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bell v The Queen [2001] WASCA 40
CA v The Queen [2000] WASCA 176
Cartwright v The State of Western Australia [2010] WASCA 4
CJ v The State of Western Australia [2009] WASCA 42
Dempsey v The Queen (Unreported, WASCA, Library No 960059, 9 February 1996)
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions v DJK [2003] VSCA 109
Ferry v The Queen [2003] WASCA 207
Fogg v The State of Western Australia [2011] WASCA 11
Hodder v The State of Western Australia [2005] WASCA 257
Humes v The Queen (Unreported, WASCA, Library No 940687, 7 December 1994)
JD v The State of Western Australia [2008] WASCA 147
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135
LWJR v The State of Western Australia [2009] WASCA 200
Ly v The Queen [2007] NSWCCA 28
M v The State of Western Australia [2006] WASCA 256
McGarry v The Queen [1999] WASCA 276
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
MPD v The State of Western Australia [2008] WASCA 57
P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69
Porter v The Queen [2008] NSWCCA 145
PP v The State of Western Australia [2004] WASCA 144
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Furlong (1992) 13 Cr App R (S) 112
R v Law; Ex parte Attorney-General [1995] QCA 444; [1996] 2 Qd R 63
R v Liddington (1997) 18 WAR 394
R v Tiso (1990) 12 Cr App R (S) 122
R v Webb [1971] VR 147
Schaper v The State of Western Australia [2010] WASCA 178; (2010) 203 A Crim R 270
Sell v The Queen (1995) 15 WAR 240
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) A Crim R 373
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341
Table of Contents
McLure P's reasons.................................................................................................................. 5
Buss JA's reasons..................................................................................................................... 8
The facts and circumstances of the offending
The family history after the offending
The report of the offending to the police
The pre‑sentence report
The psychological report
The complainant's victim impact statement
The sentencing judge's remarks
The grounds of appeal
Ground 1: general
Ground 1: the statutory sentencing principles
Ground 1: the suspension of a term of imprisonment
Ground 1: the maximum available penalty, the primary sentencing considerations and the seriousness of intra‑familial sexual abuse
Ground 1: the long‑term effects of sexual offending upon young children
Ground 1: delay in the charging of an offender
Ground 1: comparable cases
Ground 1: its merits
Ground 2
Ground 3
Conclusion
Mazza J's reasons................................................................................................................... 41
McLURE P: I agree with Buss JA that the sentencing judge erred in the exercise of the sentencing discretion and that the sentences should be set aside. This court having all the necessary materials, it can exercise the sentencing discretion afresh. Unlike Buss JA, I would uphold the claim that the sentences are manifestly excessive. I am satisfied that a term of immediate imprisonment was not the only appropriate sentencing option. I will explain my reasons for that conclusion before addressing what is to be done at this time, the appellant having been in custody for over 8 months.
The appellant was convicted on his fast‑track pleas of guilty of four counts of indecently dealing with his de facto child who was aged 12 at the time. The offending took place in two separate episodes about a month apart. The detail of the offending and the grounds of appeal are set out in Buss JA's reasons and are not repeated here.
The relevant principles relating to suspension of a term of imprisonment are detailed in Cartwright v The State of Western Australia [2010] WASCA 4 [8] ‑ [10]:
Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing …
[E]ven if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].
A sentencing judge must be positively satisfied that suspension of the term of imprisonment (or other, lesser penalty) is not appropriate before a term of immediate imprisonment can be imposed.
Buss JA's review of the sentences customarily imposed for sexual offending against children confirms that, ordinarily, a sentence of immediate imprisonment is imposed. The powerful public policy reasons for that are explained in the cases referred to. However, the unusual combination of sentencing factors in this case requires a departure from the ordinary rule.
Those factors include the following. The circumstances of the offences committed by the appellant are aptly described by the sentencing judge as being 'at the very low level of offending'. Courts in this State are very frequently called upon to consider the appropriate sentencing dispositions for sexual offending against children. The assessment of the seriousness of the circumstances of the appellant's offending is based on that experience and is not intended to trivialise his conduct.
The appellant made fast‑track pleas of guilty, had no relevant prior convictions, was of otherwise good character and was found to be remorseful. Further, and very significantly, the appellant admitted his guilt to his wife, the complainant's mother, shortly after committing the offences the subject of the second episode. The complainant's mother was then confronted with the achingly difficult decision about what to do and what was in the best interests of the family as a whole, including the complainant. She obtained expert advice. It can be inferred that decisions were made with the aim of maintaining the family as a unit. The appellant's wife told him he would have to undergo psychotherapy if he was to remain in the family home. The appellant attended counselling with a clinical psychologist at the Gateway Clinic between 13 February 1996 and 24 January 2000.
The appellant and his wife separated in 1999. After living alone for four years, he entered into a relationship with his current partner of more than eight years. In September 2010, when the complainant was aged 26, she made a complaint to police about the appellant's offending. He was aged 38 or 39 at the time of the offending and was 54 at the time of sentencing. The sentencing judge noted that numerous references as to the appellant's character indicated he was much loved and admired by people, in particular, by his new partner and by his adult children from a relationship before the appellant's marriage to the complainant's mother. His new partner and children are aware of his offending and remain supportive.
The appellant was assessed by the clinical psychologist who prepared the court‑ordered psychological report as being at a low risk of reoffending in a similar manner. She reported that he demonstrated insight into the factors that may have contributed to his offending, displayed some awareness of victim empathy issues, put strategies in place to decrease his risk of reoffending and, as a result of his counselling, had learned coping strategies. The report notes that there was nothing to suggest the appellant had offended in a similar manner following the commission of the offences for which he was being sentenced. It is clear the appellant had gone to considerable effort and had substantially rehabilitated himself in the lengthy intervening period between the commission of the offences and sentencing.
Notwithstanding that the circumstances of the offending are at the very low end of the scale of seriousness, it had significant, ongoing adverse impacts on the complainant. That is evident from the complainant's victim impact statement. Neither the sentencing judge nor the parties (in the primary proceedings or the appeal) relied on any victim impact material in the mother's witness statement. As to which, see CJ v The State of Western Australia [2009] WASCA 42 [39] ‑ [42]. The need to protect vulnerable children underscores why the courts regard sexual offending against children, in particular by persons in a relationship of trust, as seriously as they do. I am satisfied that a term of imprisonment was required. However, having regard to all the sentencing considerations to which I have referred, it was open and appropriate to suspend the term.
In determining the appropriate term of imprisonment, regard must be had to the fact that the appellant has already spent more than 8 months in custody for the offences. A term of 16 months' imprisonment, suspended for 12 months, would have been appropriate at the time of sentencing. However, because of the time actually spent in custody, I would reduce the total term to 8 months and suspend it for 3 months. The sentence for the individual counts should be 8 months on each count.
Accordingly, I would order that the appeal be allowed and the sentences imposed by the sentencing judge be set aside. In lieu thereof I would order that there be a sentence of 8 months on each count, to be served concurrently, resulting in a total effective sentence of 8 months' imprisonment. The sentences are to be suspended for 3 months.
BUSS JA: On 22 March 2011, the appellant was convicted, on his early pleas of guilty in the District Court, on four counts in an indictment. Each count alleged that the appellant had indecently dealt with the complainant, a child under the age of 16 years, who he then knew to be his de facto child, contrary to s 329(4) of the Criminal Code (WA) (the Code). The maximum available penalty for each count was 10 years' imprisonment. See s 329(10)(a).
Count 1 alleged that on an unknown date between 1 December 1995 and 22 October 1996 the appellant rubbed the complainant's vagina. Count 2 also alleged that on an unknown date between 1 December 1995 and 22 October 1996 the appellant rubbed the complainant's vagina. Count 3 alleged that on the same date and at the same place as in count 2, the appellant rubbed the complainant's breasts. Count 4 alleged that on the same date and at the same place as in count 2, the appellant inserted his tongue into the complainant's mouth.
The appellant was aged 38 or 39 years, and the complainant was 12, at the time of the offending.
The sentencing judge, Yeats DCJ, imposed an individual sentence of 14 months' immediate imprisonment on each of counts 1 and 2 and an individual sentence of 12 months' immediate imprisonment on each of counts 3 and 4. Her Honour ordered that the sentence for count 2 be served cumulatively on the sentence for count 1. The sentences for counts 3 and 4 were ordered to be served concurrently with the sentence for count 1. The total effective sentence was therefore 28 months' immediate imprisonment. It commenced on 22 March 2011. A parole eligibility order was made.
The appellant appeals to this court against the sentencing decision.
The facts and circumstances of the offending
The complainant was the appellant's de facto daughter. The appellant married the complainant's mother in 1990. When the offending occurred the appellant and the complainant's mother had an infant son.
The offending took place between 1 December 1995 and 22 October 1996 in two separate episodes. At the material time, the complainant lived with the appellant and her mother and infant brother.
Count 1 was committed when the complainant was sleeping on a sofa in the lounge room of the family home. She was clothed in a nightdress and underpants. The appellant approached the complainant as she lay asleep, and rubbed her vagina with his fingers on the outside of her underpants. The complainant awoke and the appellant walked away.
The next morning, the complainant asked the appellant about what had happened the previous night. He became angry and said to her, 'shut the fuck up and eat your breakfast'.
Counts 2, 3 and 4 were committed on a separate occasion. Once again, the complainant was asleep. She was in her bedroom and was wearing a nightdress and underpants. The complainant awoke upon the appellant entering her bedroom. He sat on her bed and rubbed her vagina with his fingers on the outside of her underpants. Initially, the appellant rubbed slowly. He then rubbed faster. When the appellant was rubbing the complainant's vagina he was groaning. The appellant then began to rub the complainant's breasts. He was breathing heavily while he was rubbing them. The complainant opened her eyes. The appellant then stopped rubbing her breasts. He lifted her up, cradled her in his arms and kissed her, putting his tongue in her mouth. The appellant told the complainant repeatedly that he loved her while she was telling him to stop. Eventually, he left the complainant's bedroom and went to work. After he had left the house, the complainant ran from her bedroom and told her mother what had happened.
The complainant's mother spoke to the appellant about the incident when he returned from work that day. He denied the allegations. The mother then questioned the complainant about the incident. The complainant maintained the truth of her complaint. After speaking with the complainant on this occasion, the mother accepted that she was telling the truth.
The complainant's mother sought advice from the 'Kids Help Line' as to how she should deal with the issue.
The next day, the mother again approached the appellant about the matter after he returned from work. Once again, he denied the allegations. The mother persisted in her questioning of him and he eventually admitted, on that day, the truth of the complainant's account of his conduct.
The family history after the offending
After the appellant admitted his offending to the complainant's mother, the mother told him that he would have to undergo psychotherapy if he was to remain in the family home. The mother made an appointment with a clinical psychologist, Mr Bill Christman, at the Gateway Clinic.
In a letter dated 5 October 2010 to police, Mr Christman confirmed that the complainant's mother attended his clinic between 22 October 1996 and 21 October 1999. Nine sessions were completed. The complainant attended one of these sessions with her mother. Mr Christman said that the mother was depressed as a result of stress and conflict that was occurring at home. This conflict was mainly between the complainant and the appellant. Mr Christman understood that the appellant had sexually abused the complainant.
In a letter dated 31 January 2011 to the appellant's solicitors, Mr Christman said that the appellant had attended sessions with him between 13 February 1996 and 24 January 2000. No other information was provided. Mr Christman's records of his sessions with the appellant had been lost or discarded (ts 11).
The appellant continued to live in the family home with the complainant, her mother, and the son of the appellant and the complainant's mother, until 1999. At that time the matrimonial relationship broke down completely. The appellant moved out of the family home and separated permanently from the complainant's mother.
At the hearing before the sentencing judge, the prosecutor tendered, without objection, the State brief, including the witness statements of the complainant and her mother. The contents of those documents were incorporated into the State's statement of material facts.
In her witness statement, the complainant's mother gave this account of the dynamics in the family home after the appellant admitted his offending:
I was very paranoid about [the appellant] being around [the complainant] when I could not see him and I knew [the complainant] was home.
[The complainant] tried to keep out of [the appellant's] way and ran to her bedroom when he came home, most times only coming out to eat.
She stayed in her bedroom a lot.
There were a lot of arguments between [the complainant] and [the appellant], [the appellant] and myself which in turn affected my young son, [D], who has autism and did not like noise.
…
[The complainant] became very withdrawn and angry in the years to follow.
Most of our friends and relatives couldn't understand why [the complainant] was so rude to [the appellant], but they were unaware of what had happened.
This evidence is relevant to put the appellant's offending in context, and to rebut any suggestion that the failure of the complainant's mother to report the offending to the police, and the continuation of the family unit for about three or four years after the offending, were indicative of a reconciliation within the family. The complainant's mother's evidence is not admissible as a victim impact statement under s 24 to s 26 of the Sentencing Act 1995 (WA). See CJ v The State of Western Australia [2009] WASCA 42 [39] ‑ [42] (Miller JA).
The report of the offending to the police
The complainant's mother did not report the offending to the police.
The police did not become involved until September 2010 when the complainant attended at a police station and made a complaint. She was then aged 26 years.
The pre‑sentence report
The material before the sentencing judge included a pre‑sentence report dated 14 February 2011.
The author of the pre‑sentence report recorded the appellant's account of the offending and the counselling he had received from Mr Christman at the Gateway Clinic, and the appellant's explanation for the offending, as follows:
He admitted that he [offended] against the victim, however minimised his offending behaviour to a large extent, claiming that he only pushed her knickers to one side and admitted to kissing her but only on the forehead. [The appellant] denied any sexual element to his behaviour rather he felt that he [offended] to obtain control over his life, which he felt was missing. He further commented that his relationship with the victim's mother was not sexually stimulating but denied any sexual interest in children.
[The appellant] informed he engaged in counselling with the Gateway Clinic from 1996, after his then wife discovered his sexual offending behaviour and insisted he seek professional help. He stated he engaged with his counsellor regularly in the early stages of his intervention, however divulged that his employment became a factor to him participating in counselling on a regular basis. [The appellant] stated he ceased counselling in approximately 1999. In discussing what treatment gains he made by engaging in this intervention, [the appellant] stated that he became aware of the seriousness of his actions and the triggers associated with it, such as the emotional stress he faced at the time, such as his marriage breakdown and employment issues. He stated that he learnt ways of dealing with his emotions rather than 'acting out' and claimed to have learnt strategies to avoid being in situations which could lead him to offend in a sexual nature, such as avoidance of contact with young females and forming relationships with women who do not have children.
The author of the report said that the appellant had expressed regret for his offending behaviour. The author was of the opinion, however, that the appellant was 'without insight into … how his actions would have impacted on the victim'.
The psychological report
The material before her Honour also included a psychological report dated 4 February 2011 from a clinical psychologist, Ms Daniela Barbuzza.
Ms Barbuzza recorded the appellant's account of the offending, his treatment with Mr Christman and the disintegration of his marriage. She said:
[The appellant] disputed the facts as outlined in the Statement of Material Facts, rather stated that he had pushed the victim's knickers to one side on two or three occasions but never touched her vagina over her clothing. He stated that he thought she was asleep during all the incidents other than the final one when she woke and he left the room. He reported to have kissed the victim on the forehead and to have told her that he loved her on the final occasion and then sat on the bed and cried as he realised what a big mistake he had made. [The appellant] reported to have been confronted by the victim's mother (his wife) the day after the final offence, at which time he admitted to his actions and attended counselling, initially at his wife's insistence. He reported to have engaged in treatment from 1996 to 1999 with Mr Bill Christman (Clinical Psychologist) and to have benefited from this. During this time, [the appellant] remained in the family home however the offences were not discussed with his wife or children and he felt the tension build until his wife asked him to move out and ended the relationship.
The appellant told Ms Barbuzza that he committed the offences 'to obtain control at a time when he felt he lacked control in his life, stating that his marriage had deteriorated, he was unsatisfied with his work, and he lacked social outlets'. He blamed the complainant for some of his marital difficulties. The appellant denied feeling sexually aroused or gratified, or engaging in fantasy, around the time of the offending. The genuineness of this denial must be assessed in the context of the following passage in Ms Barbuzza's report:
At the time of the offending, [the appellant] reported a lack of intimacy and sex with his wife as she gave her attention to their son who was about two years of age at the time hence he was not having his sexual needs met within his marital relationship. He stated that he did not want to masturbate in the presence of his wife who was always in bed with him hence was not attending to his sexual needs at the time.
Ms Barbuzza was of the view that, despite the appellant's denial, 'it seems likely that he may have been obtaining sexual gratification from the offending, and having his sexual needs met in this manner'.
According to Ms Barbuzza, the appellant planned the offending 'to the extent that he created opportunities to offend by selecting times when the victim was alone, and when he thought she was asleep hence making it less likely that she would resist his advances and/or that his offending would be detected'.
Ms Barbuzza administered psychometric testing. She reported that the appellant's results indicated that he was 'not overly forthcoming when responding to the test items, and not particularly open in regards to admitting to psychological difficulties'.
Ms Barbuzza said that the appellant demonstrated insight into the factors that may have contributed to his offending and displayed 'some awareness of victim empathy issues'.
Ms Barbuzza made these comments about the progress that the appellant had made towards rehabilitation and the coping strategies he had learned which, in combination, appeared to have resulted in his being at a low risk of reoffending in a similar manner:
[The appellant] demonstrated insight into the factors that may have contributed to his offending behaviour and displayed some awareness of victim empathy issues. He also appears to have put strategies into place to decrease his risk of re‑offending, stating that he now takes deliberate action to ensure that he does not place himself in high risk situations involving poor communication and dissatisfaction with his life and chooses not to avoid his problems, rather to address them before they 'build up'. [The appellant] has not resided with children similar in age to [the complainant] since he separated from the victim's mother and moved out of their home in 1999; and he does not have overnight contact with his grandchildren. This has been verified by his current partner. He has also attended counselling whereby he learned coping strategies including effective communication …
Based on actuarial and dynamic risk prediction tools, [the appellant] is considered to present a low risk of re‑offending in a similar manner in the future as his circumstances appear to have changed significantly, and he has implemented the above strategies to decrease his risk even further. Furthermore, there is nothing to suggest that he has offended since 1996. Given his low risk of re‑offending, [the appellant] is not considered a priority for treatment however he stated that he would be willing to participate in any treatment that is recommended by the court.
In Ms Barbuzza's opinion, the appellant's risk of reoffending in a similar manner 'is considered to be elevated in the event of him having unsupervised contact (particularly overnight) with children similar in age to [the complainant], particularly if he has established a relationship of trust with the child and/or their significant others'. Ms Barbuzza added, however, that according to the appellant and his current partner, his family are aware of his offending behaviour and, as a result, are 'likely to be vigilant in regards to him having unsupervised contact with children in the future'.
The complainant's victim impact statement
The complainant said in her victim impact statement that she feels that she was robbed of her childhood innocence. As a result of the offending, she regularly consumed alcohol to excess. The complainant said that during the period of about three to four years after the offending, when the appellant remained in the family home, she became reclusive.
Since the offending, the complainant has been frightened of older men, and does not feel safe when she is with them on her own. She attributes to the offending 'huge anger issues' she suffered through her teenage years. Also, there have been 'intimacy and trust issues' with her husband. On occasions, she has been violent towards him.
The complainant explained that she has very low self‑esteem, and is a very tense and highly stressed person, because of the offending. She retains very considerable anger towards the appellant. The complainant says that he makes her 'skin crawl', and she constantly imagines herself 'hurting him'.
According to the complainant, she has suffered a number of 'emotional breakdowns' since the offending. During these times she derived substantial assistance from her mother and husband.
The sentencing judge's remarks
The sentencing judge sentenced the appellant on the basis that the version of the offending he had given to the author of the pre‑sentence report (and, by inference, to the author of the psychological report) merely reflected his recollection of events after many years, and did not diminish the mitigating force of his admission of guilt (ts 20 ‑ 21).
Her Honour characterised the appellant's criminal conduct as 'at [a] very low level of offending' (ts 21), but added that the offending was 'very serious' because of the complainant's age (ts 21). Her Honour noted that, at the time of sentencing, the appellant was aged 54 years, he had spent no time in custody and numerous references as to the appellant's character indicated that he was 'much loved and admired' by people, and in particular by his new partner and by his adult children (these children being from a relationship before the appellant's marriage to the complainant's mother) (ts 21 ‑ 22).
The sentencing judge commented that it was to the appellant's advantage that he had sought counselling and had persisted with this for a period of about four years (ts 22).
Her Honour interrupted the sentencing remarks to enable the appellant to read the victim impact statement. Defence counsel conveyed the appellant's response to the statement, as follows:
RICE, MR: … he accepts the effect that his offending has had on the victim but one thing he … pointed out to me [is] that in about July 2001, he was away up north on a holiday with his brother and he allowed the victim to stay at his flat for 3 weeks [and] she appeared to accept that without any difficulty and that she had actually come to see him for advice … when she had some difficult boyfriends [about] how to deal with them.
So that he was, I think, shocked by what she said about him, but he nevertheless accepts that but points out that there were some times when she did seek his help and he gave her some help (ts 23).
The sentencing judge made these observations about the victim impact statement and the impact of the offending upon the complainant:
The reason … I wanted you to read the child's victim impact statement ‑ I know she's a grown woman now ‑ is that it encapsulates what's happened to her emotionally from this. And it happened to her, and we see this continually in the courts; because a child of that age, being only 12, where you would have been the dominant male person in her life, the breach of trust related to what you did to her affects her entire growing up and development as a … human being.
And … we see time and time again that people who have been sexually abused turn to drugs, turn to alcohol. They may have had that propensity anyway, but they suffer very severely the after effects from what you and I, with no knowledge, might have thought was a rather minor incident.
The trauma from it is enormous because of the breach of trust and the severe vulnerability, and the victim impact statement shows the serious long term impacts because of the severe breach of trust (ts 23 ‑ 24).
Her Honour accepted that the appellant discontinued his offending behaviour once the mother discovered what had been occurring and her Honour accepted that the appellant had shown remorse. However, her Honour emphasised that the impact on the complainant had been 'quite severe' (ts 24).
After imposing the individual and total effective sentences, the sentencing judge told the appellant that she had given thought to 'the matters in mitigation and whether they go so far as to allow me to simply suspend your term of imprisonment' (ts 25). Her Honour decided that it was not open to her to suspend the sentences. She said:
Unfortunately because of the attitude of the courts and the seriousness of the offending so far as the victim is concerned, I am not prepared to suspend these sentences (ts 25).
The grounds of appeal
The appellant relies on three grounds of appeal.
Ground 1 alleges that the individual sentences were manifestly excessive. Ground 2 alleges that the sentencing judge acted on a wrong principle in determining that the attitude of the courts precluded her from imposing a suspended sentence. Ground 3 alleges that the total effective sentence did not bear a proper relationship to the overall criminality involved in all of the offences.
On 13 June 2011, Mazza J granted leave to appeal on each of the grounds.
Ground 1: general
A ground of appeal which alleges that an individual sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether an individual sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the offender's criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
Counsel for the appellant confirmed at the hearing that ground 1 challenges the imposition of a term of immediate imprisonment on each of the counts. The appellant does not take issue with the length of any term of imprisonment, but asserts that error is to be inferred as a result of the sentencing judge's failure to suspend the terms.
Ground 1: the statutory sentencing principles
In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
Ground 1: the suspension of a term of imprisonment
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and s 39(3) of the Act. The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14] (McLure JA), [58] (Buss JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
Section 76(1) of the Sentencing Act provides:
A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.
By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Parliament expressly contemplated that a suspended term of imprisonment may be imposed in a case where a serious offence has been committed. This is apparent from the terms of s 76(1), which permit suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years.
The factors to be considered when deciding whether or not to suspend a term of imprisonment include:
(a)the perceived seriousness and intrinsic character of the offence;
(b)whether there was any element of persistence;
(c)general deterrence;
(d)factors personal to the offender including mitigating circumstances;
(e)the need to demonstrate the community's condemnation of offences of the kind in question;
(f)the prospect of rehabilitation of the offender in combination with the personal deterrence provided by the threat of activation of the suspended sentence; and
(g)any reasons militating in favour of an exercise of mercy.
See R v Liddington (1997) 18 WAR 394, 406 (Steytler J). This list of factors is not, of course, exhaustive.
The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
Ground 1: the maximum available penalty, the primary sentencing considerations and the seriousness of intra‑familial sexual abuse
The maximum available penalty for the offence of indecently dealing with a child who the offender knows is his or her lineal relative or a de facto child is, where the child is under the age of 16 years, imprisonment for 10 years. See s 329(4) read with s 329(10)(a) of the Code. This has been the maximum available penalty since 1992, when the current s 329 was inserted into the Code.
The primary sentencing considerations for offences of the kind in question are punishment of the offender, specific and general deterrence and the protection of vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
There is no 'tariff' for the offence of indecently dealing with a child who the offender knows is his or her lineal relative or a de facto child (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty. It is important, however, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) A Crim R 373 [68] (Steytler P, McLure JA agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. They do not fix an upper or lower limit. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. See Ly vThe Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [147] (Buss JA).
In recent years, there has been a 'firming up' of sentences imposed for sexual offences against children, especially cases involving intra‑familial sexual abuse. See VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [288] (Wheeler & Roberts‑Smith JJA and Miller AJA).
However, as this court (Steytler P, Pullin & Buss JJA) noted in JD v The State of Western Australia [2008] WASCA 147, non‑custodial sentences are not extraordinary for a single incident of indecent dealing with a child, especially those cases involving the touching of the breasts of a young girl [18]. See also Hodder v The State of Western Australia [2005] WASCA 257 [5] (Pullin JA, McLure JA agreeing). When custodial sentences have been imposed they have ranged from 9 months to 18 months (under the sentencing regime applicable before the introduction of the 2003 transitional provisions), with sentences at the highest end of the range involving the fondling of a child's genitals. See Ferry v The Queen [2003] WASCA 207 [81] (Anderson J, Murray & Wheeler JJ agreeing); JD [18].
Ground 1: the long‑term effects of sexual offending upon young children
As I have mentioned, by s 6(2)(b) of the Sentencing Act, the seriousness of an offence must be determined by taking into account, amongst other things, the circumstances of the commission of the offence, including 'the vulnerability of any victim of the offence'.
At common law, a sentencing judge may take into account, in determining sentence, any detrimental, prejudicial or deleterious effect that may have been produced on the victim by the commission of the offence. See R v Webb [1971] VR 147, 151 (Winneke CJ, Pape & Lush JJ); Porter v The Queen [2008] NSWCCA 145 [54] (Johnson J, Bell JA & McCallum J agreeing). See also, in relation to victim impact statements, s 24 to s 26 of the Sentencing Act.
In Director of Public Prosecutions v DJK [2003] VSCA 109, Vincent JA (Batt & Eames JJA agreeing) said in relation to the sentencing of offenders for the sexual abuse of children:
In consequence of an increasing awareness in our society of the incidence of the sexual abuse of children and much greater understanding of the potential destructive impact that it has had and is continuing to have on the lives of so many people in our community, this Court has, on a large number of occasions, emphasized two fundamentally important considerations … Sentences must involve recognition of the kind of personal damage that is occasioned by such behaviour and of the reality [that] the rehabilitation of the victim may be far more difficult to accomplish than that of the perpetrator … Through the sentences that they impose, the courts must, in order to protect future possible victims against such damage, endeavour to deter those who may be so inclined from engaging in such activities [26].
See also, generally, VIM [289] ‑ [292]; P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69 [39] (Miller JA, Owen & Wheeler JJA agreeing).
Ground 1: delay in the charging of an offender
In Sell v The Queen (1995) 15 WAR 240, the appellant was convicted after a trial on three counts of indecently dealing with a girl under the age of 13 years. The complainant was the appellant's daughter. The offences occurred in 1972 when the complainant was aged about 11 years. The matter was not reported to the police until 1993. The appellant appealed to the Court of Criminal Appeal against his conviction and sentence. Malcolm CJ (Kennedy & Ipp JJ agreeing) distinguished between cases in which the offender merely has not been convicted of any offence between the time of the offending in question and the time of sentencing, on the one hand, and cases in which the offender is genuinely remorseful and has been rehabilitated, on the other. His Honour said:
In the present case a period of approximately 23 years elapsed between the time of the offences and the time of sentencing of the appellant. The explanation for this is that no complaint was made to the police until some 21 years after the offences had been committed. It was submitted that the appellant had the opportunity of rehabilitation during this lengthy period. I am unable to accept this submission. There was no question of rehabilitation as such, although it was accepted by the learned sentencing judge that the appellant had led a blameless life since the commission of these offences. It was also acknowledged that he was unlikely to reoffend and was of no danger to the community (261).
In R v Tiso (1990) 12 Cr App R (S) 122, Taylor LJ, who delivered the reasons of the Court of Appeal, noted that offences involving sexual abuse within a family are, by their very nature, likely to remain undetected for significant periods (125). His Lordship suggested that this may occur 'partly because of fear, partly because of family solidarity and partly because of embarrassment' (125).
In Bell v The Queen [2001] WASCA 40, Anderson J (Kennedy J agreeing) referred to Taylor LJ's observations in Tiso, and then said:
The point is that in cases of intra-familial sexual abuse, the offending often goes undetected for a long time, the offender will often be a person who has led an otherwise blameless life, will often be of no danger to anyone except children in the family and will usually be most unlikely to reoffend once the offending in question is disclosed, or the opportunity to commit offences against the particular complainant has gone. Because these are common features in cases of this kind, they are not of much mitigatory weight. Other sentencing considerations overwhelm them. Sentencing objectives in this kind of case focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a position of trust and authority over them in the family setting and who are in a position to conceal their offending [12].
In Bell, the Court of Criminal Appeal reiterated the importance, in cases of intra‑familial sexual abuse of young children, of the distinction between 'cases in which all that appears is that the offender has not been convicted of any offence between the time of the offences and the time of sentencing and cases in which there are genuine claims to rehabilitation and remorse' [10]. See also R v Law; Ex parte Attorney-General [1995] QCA 444; [1996] 2 Qd R 63, 66 (Pincus & Davies JJA and Demack J).
Ground 1: comparable cases
In Ferry, the appellant, a 45‑year‑old man, was convicted after a trial on one count of indecently dealing with a 12‑year‑old girl by unbuttoning her shirt, opening it, pulling her bra above her breasts and touching them. The maximum available penalty was 10 years' imprisonment. The primary judge imposed a sentence of 2 years' immediate imprisonment. The appellant was in a position of trust with respect to the complainant, arising out of the trust placed in him by the complainant's mother to be a guiding influence and, also, his standing as the complainant's employer. He knew that the complainant was going through a difficult, if not dysfunctional, period in her development. This had prompted the mother to ask for his assistance. The offence in question was but the culmination of at least some preparatory groundwork by the appellant, and not merely a momentary aberration. He did not show any remorse or contrition. The appellant was not a first offender, but he had not been guilty of any serious offending for more than a decade.
In the Court of Criminal Appeal, Anderson J reviewed a number of comparable cases. It is useful to reproduce his Honour's review:
In the case of 'CA' v The Queen [2000] WASCA 176 a father had unlawful carnal knowledge of his daughter and had indecently dealt with her on three occasions when she was aged between 6 and 12 years. The facts of each offence are stated only very briefly in the judgments of Kennedy, Pidgeon and Wallwork JJ but one of the offences was of touching the girl's "breast" when she was 11 or 12. No details are given. Another offence was of indecent dealing involving pulling down her underpants and exposing her vagina. A sentence of 12 months' imprisonment was imposed for the touching and 18 months' imprisonment was imposed for pulling her pants down.
In the case of Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994 a sentence of 1 year each was handed down with respect to two incidents of indecent dealing by a 34 year old man of a 17 year old girl firstly on a train and later at a railway terminal. [One] of these offences involved the offender rubbing his face against the face and lips and neck of the complainant and the other involved fondling her breasts over her clothes. In the case of R v Lonesbrough, unreported; CCA SCt of WA; Library No 950421; 15 August 1995 there were three offences of indecent dealing of a girl aged 14 years. One of these offences involve rubbing the complainant's inner thigh and another involved feeling her breasts over her clothing 'for a couple of minutes'. The sentencing Judge imposed fines of $1,500 in relation to each of the offences. A Crown appeal against the inadequacy of the sentences was dismissed. In the case of Goodvinn v The Queen, unreported; CCA SCt of WA; Library No 950358; 2 June 1995 the offender was sentenced to 18 months' imprisonment for indecent dealing involving fondling the penis of a male child aged about 6. In the case of Wright v The Queen, unreported; CCA SCt of WA; Library No 920060; 3 February 1992 two concurrent sentences of 10 months' imprisonment were imposed on a 28 year old man of comparatively good record for indecently dealing with an intellectually handicapped woman of approximately the same age by fondling her breasts. In the case of Marria v The Queen, unreported; CCA SCt of WA; Library No 960582; 1 October 1996 a sentence of 9 months' imprisonment on a 60 year old male for indecent dealing of a 15 year old girl by briefly touching her breasts over her clothing was set aside and a fine of $3,500 was substituted. In the case of Biggs v The Queen, unreported; CCA SCt of WA; Library No 960657; 11 November 1996 a man in his late fifties with a good record was fined $10,000 for a single offence of indecent dealing of his step-daughter aged 13 by placing his hands underneath her clothes and touching her bare breasts. In the case of Hamilton v The Queen, unreported; CCA SCt of WA; Library No 970082, 4 March 1997 concurrent sentences of 12 months' imprisonment were imposed on a school teacher for offences of indecent dealing one of which involved touching the breast of an 8 year old child over her underclothing.
I would also refer to the New South Wales case of R v Harkin (1989) 38 A Crim R 296 in which the offender was convicted of indecent assault on two girls aged 11. Each girl had a turn at steering a car while sitting on the appellant's lap, during which the appellant fondled the particular girl's breasts under her clothing. The offender was of good character. He was sentenced to 15 months' imprisonment on each count, the sentences to be served concurrently [82] ‑ [84].
Anderson J also referred to R v Furlong (1992) 13 Cr App R (S) 112. In this case, the offender approached a 15‑year‑old school girl who was waiting for a bus and stood behind her. When she was getting onto the bus he grabbed her on the bottom once with his hand, under her blazer but over her skirt. He was sentenced to 9 months' imprisonment and his appeal against sentence was dismissed [85].
The appellant in Ferry alleged that the sentence of 2 years' immediate imprisonment was manifestly excessive. Anderson J (Murray & Wheeler JJ agreeing) held that the comparable cases demonstrated that a sentence of 2 years' immediate imprisonment for a single incident involving fondling the breasts of a 12‑year‑old girl was 'much higher than is usually given' [86]. The original sentence was set aside and replaced by a sentence of 15 months' immediate imprisonment.
In Hodder, Pullin JA referred to a number of cases involving indecent dealing with children which involved either touching or indecent exposure. His Honour listed the cases together with a description of the offending and the sentencing outcome. Pullin JA reproduced in substance the review carried out by Anderson J in Ferry. Pullin JA referred to only one additional case, as follows:
McGarry v R [1999] WASCA 276. The offender was sentenced to [a] three year term of imprisonment. The offender through the telephone directory located the home address and telephone number of the 11 year old complainant. The offender attended at the complainant [sic] home and upon seeing her inside, attracted her attention by tapping on the window. As the complainant approached the window, the offender exposed his erect penis and masturbated until ejaculation. The offender subsequently made three telephone calls to the complainants [sic] home, pretending to be a police officer. The offender had a 13 year old record of sexual offending [5].
Some observations need to be made about the cases referred to by Anderson J in Ferry and Pullin JA in Hodder. First, each of the sentences of imprisonment was a term of immediate imprisonment. None of the terms was suspended. Secondly, the offender in CA v The Queen [2000] WASCA 176 was also sentenced to other, lengthier, terms of imprisonment for other, more serious, sexual offending against the same complainant. Thirdly, in Humes v The Queen (Unreported, WASCA, Library No 940687, 7 December 1994), the sentences of imprisonment were ordered to be served cumulatively. Fourthly, the offending in McGarry v The Queen [1999] WASCA 276 was planned, persistent and sinister.
In Hodder, the appellant was sentenced to 16 months' immediate imprisonment following his conviction after a trial on one count of indecent dealing with a child under the age of 13 years. The maximum available penalty was 10 years' imprisonment. See s 320(4) of the Code. The appellant was aged 59 years and the complainant was a girl aged 11. They were unrelated. The offence occurred in the vicinity of the Midland bus station. The appellant made gestures to the complainant which involved the appellant pointing to his groin area and to his mouth and displaying money in his wallet. The appellant intended, and the complainant inferred, that he was offering money if the complainant would perform oral sex on him. The complainant moved away and the appellant made an obscene comment to her. The appellant had a prior criminal record which included offences for indecent acts, indecent assault and wilful exposure, but the last offence of this type was committed about 12 years previously. The appellant lacked remorse. A majority of this court allowed the appellant's appeal and substituted a sentence of 12 months' immediate imprisonment. Counsel for the appellant had conceded that immediate imprisonment was the only appropriate penalty.
In L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135, the appellant was convicted, on his pleas of guilty, of six counts of indecent dealing with a child under the age of 13 years. The maximum available penalty for each offence was 10 years' imprisonment. All of the offences occurred between 17 and 25 January 2004. Counts 1 and 2 occurred on one day and counts 3 to 6 on another occasion. The appellant was the complainants' uncle.
Count 1 involved the appellant procuring K, a girl aged 9 years, to touch his penis. Count 2 involved the appellant exposing his penis to M, a girl aged 7 years. Count 3 involved the appellant urinating in K's presence. Count 4 involved the appellant urinating in M's presence. Count 5 involved the appellant masturbating in K's presence. Count 6 involved the appellant masturbating in M's presence.
The primary judge imposed sentences of immediate imprisonment, as follows:
Count 1:16 months;
Count 2:8 months (concurrent);
Count 3:8 months (concurrent);
Count 4:8 months (concurrent);
Count 5:16 months (concurrent); and
Count 6:16 months (cumulative).
The total effective sentence was therefore 32 months' immediate imprisonment.
The appellant appealed to this court against the sentencing disposition. He alleged, relevantly, that the individual sentences for counts 1, 5 and 6 were manifestly excessive, the totality principle had been infringed and the primary judge erred in failing to suspend the sentences. The appellant relied upon the following facts and circumstances: the offending did not involve touching the complainants; there was no threat, coercion or violence; the appellant pleaded guilty at an early stage; he did not have a prior criminal record; the appellant's wife was strongly supportive of him; he had been in regular employment; and he was at a low risk of reoffending, especially if he underwent psychological treatment to address his emotional difficulties.
The appellant's appeal was dismissed. Miller JA (Pullin JA & Le Miere AJA agreeing) said:
I accept that in the present case, the appellant did not touch the complainants. To an extent, this distinguishes the case from some of the cases to which I have referred. Nevertheless, the children were very young and the offences were disgusting. They had a significant effect upon the victims. Notwithstanding the appellant's plea of guilty and the other matters that were put in mitigation of penalty, it was, in my view, a case which called for a sentence of imprisonment for each offence [37].
Miller JA (Pullin JA & Le Miere AJA agreeing) also held that the primary judge did not err in failing to suspend the terms of imprisonment:
The learned sentencing judge considered that the seriousness of the offences was such that suspension was inappropriate. That is clearly a legitimate factor to consider. The offences here were serious. They involved a man 34 years of age committing offences of indecent dealing on his nieces aged 7 and 9 years of age respectively. The circumstances of indecent dealing I have already set out. Aggravating features included the disparity in age between the offender and the victims, the breach of trust that was involved and the consequences to each of the victims. For the appellant to have exposed his penis in the circumstances in which he did and ultimately to have masturbated to the point of ejaculation in front of the two young girls meant, in my view, that the offences were properly described as too serious to allow the suspension of sentence. That is not to say that a sentence of suspended imprisonment can never be imposed for offences of indecent assault of this nature. Clearly, such a sentence can be so imposed. It will, however, be a merciful disposition to suspend the sentences. Although in R v Chilvers (supra), McKechnie J at [25] considered [that] '[e]xceptional circumstances' must be shown to justify a sentence other than immediate imprisonment, I would not go so far as to say that exceptional circumstances need always be shown. It is sufficient that the facts of a particular case may justify suspension. This, however, was not such a case [41].
In P, the appellant was convicted, on his fast‑track pleas of guilty, of two counts of indecent dealing with a child whom he then knew to be his lineal relative. The maximum available penalty for each offence was 10 years' imprisonment. Count 1 alleged that between 26 January 2006 and 27 January 2006, the appellant indecently dealt with his daughter, K, by touching her breasts with his hands. Count 2 alleged that between 1 February 2006 and 28 February 2006, the appellant indecently dealt with K by touching her breast with his hands. K was the appellant's daughter. At the material time, he was aged 44 years and she was aged 15.
The primary judge sentenced the appellant to 8 months' immediate imprisonment on each count. He ordered that the sentences be served cumulatively. The total effective sentence was therefore 16 months' immediate imprisonment.
The appellant appealed to this court. He alleged that the individual sentences of 8 months' immediate imprisonment were manifestly excessive in that dispositions other than imprisonment to be served immediately were open, and should have been imposed. Alternatively, he argued that if sentences of imprisonment to be served immediately were the only dispositions open, then the sentences should have been ordered to have been served concurrently rather than cumulatively.
The salient facts of the offending were these. In January and February 2006, the appellant had been separated from his wife for about seven months. He lived with the complainant. On the Australia Day long weekend in January 2006, the appellant and the complainant went camping with several neighbours. At about 1.00 am on 27 January 2006, the appellant, who was intoxicated and sleeping in the rear of a utility with the complainant, leaned over and began to kiss her on the lips. She pushed him away, but he reached under her back, undid her bikini top, pushed her singlet up and fondled her breasts (count 1). He then moved his other hand to the top of her pants, but the complainant pushed him away. He then desisted. Between 1 and 28 February 2006, the appellant returned to his home between 9.00 pm and 10.00 pm. He was intoxicated. The complainant was at home. The appellant walked up to her and asked for a cuddle. He attempted to put his arm around her. He then moved his hand up her arm and fondled her breast on the outside of her clothing. The complainant ran to her bedroom and then went to the house of a friend. The appellant was interviewed by police on 27 February 2007. He made admissions and was charged with the offences.
The primary judge noted: when interviewed by police, the appellant was cooperative and remorseful; he was genuinely concerned for the complainant's welfare; he was intoxicated when he committed the offences; the appellant had been fully employed since leaving school and was a productive citizen who worked as a mechanic; he paid part of his salary by way of maintenance for the complainant; he had no prior criminal record; his antecedents were very good; when the offences were committed, the appellant had been separated from his wife for some months because she had moved out of home and formed a relationship with another man, and this caused stress and had occasioned the appellant to become depressed, for which he took medication.
On appeal, the appellant relied, in support of his grounds of appeal, on a number of factors, namely:
a.the plea of guilty on a fast track basis;
b.the seriousness of the behaviour constituting the offences;
c.the absence of pre-meditation;
d.the favourable pre-sentence report attesting to the empathy for the victim;
e.the rehabilitation aspect of sentencing given the counselling already undertaken by the appellant;
f.the fact the Appellant was maintaining the victim (his daughter) to the tune of $150.00 per week;
g.the desirability in encouraging the wish of the Appellant to retrieve as much as possible the relationship between the father and daughter, which possibility was not closed by the victim;
h.the full time employment of the Appellant;
i.the lack of a criminal record;
j.the lack of any violence or forceful behaviour;
k.the degree of co-operation and remorsefulness on the part of the Appellant;
l.the proximity in time of the two offences;
m.the short duration of each offence particularly the second and the fact that the Appellant desisted immediately on the second occasion; and
n.the offending behaviour being at the bottom of the scale for offences of this nature [10].
As to the contention that the appellant had 'already undertaken' counselling, the sentencing remarks of the primary judge indicate that the appellant was 'prepared to undertake counselling' (ts 15), but there was no finding that any counselling had already been undertaken.
Miller JA (Owen & Wheeler JJA agreeing) said:
When (as here) it is the case that the offender is the natural father of the complainant, and where there is more than one single offence, the circumstances will be rare when a sentence other than one of immediate imprisonment is imposed. Biggs v R (Unreported, WASCA, Library No 960657, 11 November 1996) was a case in which the appellant had been convicted of indecent dealing with his 13-year-old stepdaughter by placing his hand underneath her clothes and touching her bare breasts and then moving his hand towards her vagina. The similarities with the first count on the indictment in this case are obvious. Pidgeon J (with whom Owen and Templeman JJ agreed) said that the offence was one 'where, normally, one would expect imprisonment when a child is treated in that manner' (see page 7).
It seems to me that sentences of 8 months' imprisonment on each count on the indictment in this case were well within the range of sentences that could have been expected in the circumstances of the case. What aggravated the case was the fact that the appellant was the natural father of the complainant, together with the repetition of the offence and the detrimental effect that the offending had upon the complainant.
… The victim impact statements of the complainant speak eloquently of her distress at what has occurred. She has had her schooling disrupted. Her employment prospects are therefore very much at risk. She speaks of trying to solve her problem with alcohol. She mentions an eating disorder. Perhaps most importantly, she makes reference to the fact that she is angry with herself because of what happened.
The learned sentencing judge took full account of most of the matters referred to in the particulars annexed to the ground of appeal. They included recognition of the fast-track plea; the contents of the pre-sentence report; the fact that the appellant was maintaining the complainant; the antecedents of the appellant, including his past record of employment and lack of any prior criminal history; the absence of violence; the co‑operation and remorse of the appellant; and the facts of the case. Although it is complained that the learned sentencing judge failed to give recognition to the offending behaviour being at the bottom of the scale for offences of this nature, there is no substance in that contention. It was not a case in which the learned sentencing judge suggested that the offending was anything other than indecent dealing in the form of touching the breasts of the complainant. Clearly, it was not in the bracket of more serious offending and the sentences of 8 months' imprisonment imposed on each count recognised that fact [37] ‑ [40].
Miller JA concluded that the individual sentences were 'well within the range of sentences' open to the primary judge and in accordance with the range of sentences commonly imposed for offences of this nature [41]. His Honour also held that the primary judge was correct in deciding that the circumstances of the appellant's offending were too serious to allow suspension [43]. Finally, Miller JA concluded that the accumulation of the individual sentences, resulting in a total effective sentence of 16 months' immediate imprisonment, was a proper measure of the appellant's criminality, and the totality principle had not been infringed [52].
In JD, the appellant was sentenced by the primary judge to a term of 10 months' immediate imprisonment for a single count of indecent dealing with a stepchild. The maximum available penalty was 5 years' imprisonment. See s 329(4) read with s 329(10)(b) of the Code. At the time of the offence, the appellant was aged 40 years and the victim was aged 17. The appellant was married to the victim's mother and they had lived together for 13 years. They commenced cohabitation when the victim was aged 4. She treated the appellant as her father. There were two children of the marriage who also lived with the appellant and his wife. Although the victim was aged 17, she had a learning disability which resulted in her having the effective mental age of a 10‑year‑old.
On the evening of the offence, the family had been to a party. They returned home at about 1.00 am. The appellant was intoxicated. It was possible that his intoxication was exacerbated by medication he was taking.
The victim slept in a caravan adjacent to the family home. On returning from the party, she went to the caravan, dressed in pyjamas and watched a DVD. The appellant, who went outside because he was feeling ill from the effects of alcohol, went to the caravan and knocked on the door. He entered the caravan and went to the victim's bed. The appellant then removed his trousers and underwear. He lay on the victim's bed and commenced rubbing his erect penis against her genital area outside her clothing. He kissed her on the mouth three times and inserted his tongue into her mouth.
The victim said something which indicated she felt uncomfortable with what was occurring. The appellant immediately appreciated the inappropriateness of his behaviour and left the caravan. He went away with the thought of committing suicide, but did not proceed with this idea because of an appreciation that it would cause additional difficulties for the victim and other members of the family.
The next morning, the victim complained to her mother. The appellant made immediate admissions to his wife. He then went to the police where he made full admissions in a video‑recorded interview. At all times, the appellant accepted responsibility for his offending. He was placed in custody and did not apply for bail as a result of the remorse he was suffering for his conduct. He spent 101 days in prison. During this time he again contemplated suicide.
This court (Steytler P, Pullin & Buss JJA) allowed the appellant's appeal against sentence. It ordered, relevantly, that the term of 10 months' imprisonment be suspended for a period of 2 years. The court said:
This is an exceptional case because of the overwhelming list of mitigatory factors. This was a single incident carried out by a person under the influence of alcohol, who immediately realised the seriousness of what he had done and then in the immediate aftermath, contemplated committing suicide, made admissions to the victim's mother the next morning, went to the police the next day and made full admissions to them. The offence did not involve any threat, coercion or violence. There was no pre-planning or premeditation; the victim was fully clothed when the offence occurred; the offending behaviour was of a short duration; when the victim indicated discomfort the appellant immediately desisted; the appellant entered a plea of guilty to the offence of which he was convicted at the earliest possible opportunity; as an indication of his remorse he spent 101 days in custody before applying for bail; he then enrolled in and committed himself to the conditions of a SafeCare programme; he revealed himself as highly motivated to understand the origins of his offending behaviour and to ensure that it did not reoccur; he continued to express his deep remorse; he accepted full responsibility for the offence; he had no criminal record; he was in full-time employment when sentenced and as a result of the offence, he lost his business, his house, his marriage and lost contact with the victim and the children of the marriage [16].
In LWJR v The State of Western Australia [2009] WASCA 200, the appellant was convicted, on his fast‑track pleas of guilty, of seven counts of unlawful and indecent dealing with a child under the age of 13 years, contrary to s 189(2) of the Code. At the material time, the maximum available penalty for an offence under s 189(2) (which was repealed in 1989) was 7 years' imprisonment. The primary judge sentenced the appellant to a total effective sentence of 7 years' imprisonment. On appeal, the appellant did not challenge the individual sentences. Rather, he alleged that the total effective sentence infringed the totality principle.
The offences were committed against two complainants, each of whom was the appellant's daughter. The offences occurred between July 1979 and January 1981. The facts of the offences were these:
The appellant, who was naked, placed his 3-year-old daughter (the first complainant), who was wearing only a T-shirt, over his penis. There was no penetration (count 1). The rest of the offending was against his 5‑year‑old daughter (the second complainant). The appellant placed his penis into the mouth of the second complainant, making her perform oral sex (count 2). Whilst this was occurring, the appellant penetrated the second complainant’s vagina with his fingers (count 3). Counts 4-7 occurred on another occasion and involved three counts of fellatio (counts 4, 5 and 6) and one count of digital penetration (count 7) [3].
When the offences were committed the appellant was an alcoholic. It was accepted that there was a causal connection between his alcohol consumption and the offending. The appellant's wife became aware of the offending and left the family home with their three children. She told him they would not return unless he stopped drinking. The appellant stopped drinking and his wife and children returned. The appellant and the other members of the family undertook individual and group counselling in relation to the offending. The appellant did not reoffend. In 1985, at the request of one of the complainants, the appellant wrote to her expressing remorse and apologising for his behaviour.
In June 2008, nearly 30 years after the offences occurred, the appellant was interviewed by police concerning the sexual abuse. He readily made admissions. The appellant was aged about 32 years when he committed the offences. He was 61 at the time of sentencing. He had not committed any other offences in the intervening period. The State did not challenge his claim that he had been completely rehabilitated.
This court (Owen, McLure & Pullin JJA) held that, notwithstanding the significant mitigatory factors present in the case, 'the nature of the offending with its long‑term deleterious effects on the victims, [was] too serious to countenance anything but a sentence of immediate imprisonment' [7]. Their Honours referred to these mitigatory factors, including the appellant's rehabilitation, as follows:
In addition to the appellant's fast-track plea of guilty, there are other manifestations of his remorse. They include the admission and apology in his 1985 letter to the second complainant and his cooperation with police. There is another mitigating factor in this case which is usually absent from cases of this nature. The clear weight of the evidence supported the appellant’s unchallenged proposition that he was completely rehabilitated. Ordinarily, rehabilitation requires insight into the wrongful nature of the conduct, remorse for that conduct and action taken to address the cause of the offending. This is not a case in which the only relevant circumstance is the cessation of offending for a significant period. As Anderson J noted in Bell v R [2001] WASCA 40 [15], that is not necessarily indicative of rehabilitation. There are other indicators of rehabilitation in this case. The offending stopped when the appellant gave up alcohol which was causatively linked with his offending. He attended counselling with his family to address the issues arising out of his offending and expressed his remorse and apologies in the 1985 letter to his daughter [8].
It was decided that, in all the circumstances, the appeal should be allowed and the total effective sentence of 7 years' imprisonment should be set aside. The appellant was resentenced by their Honours to a total effective sentence of 5 years' immediate imprisonment (7 years 6 months pre‑transitional). They held that this sentence was all that was required to meet the recognised sentencing objectives, including punishment, retribution and deterrence [9].
Ground 1: its merits
The sentencing judge was bound to impose sentences on the appellant that were commensurate with the seriousness of the offences he had committed. The performance of this task involved an evaluation of the factors set out in s 6(2) of the Sentencing Act. It was necessary to identify and synthesise the circumstances of the commission of the offences, including the vulnerability of the complainant and the impact of the offending on her, any circumstances which aggravated the appellant's culpability or increased the extent to which he should be punished, and any circumstances which mitigated his culpability or decreased the extent to which he should be punished.
The seriousness of the appellant's offending is apparent from the following:
(a)The offending involved a gross breach of trust. It deprived the complainant of her innocence and of a normal relationship with the appellant as her stepfather.
(b)The appellant preyed upon the complainant when she was asleep and was, therefore, particularly vulnerable.
(c)The offending did not involve one isolated episode or a momentary aberration. It involved some planning or premeditation. The second incident was more egregious than the first. The nature and extent of the appellant's indecent dealing with the complainant escalated.
(d)The appellant intimidated the complainant into silence after the first incident. He told her to 'shut the fuck up'. The appellant ignored her attempt to confront him and proceeded to reoffend.
(e)At the material time, the appellant was not under the influence of alcohol or illicit drugs (although, if he had been, this would not of course have been mitigating). The appellant was not suffering from any mental illness or impairment.
(f)The complainant's account of the second incident (in particular, her description of the appellant 'groaning' and 'breathing heavily') and the appellant's comments to Ms Barbuzza about the state of his marriage at the relevant time (in particular, his sexual needs not being met within the marital relationship) indicate that the appellant derived some sexual gratification from his conduct.
(g)When the offending occurred the appellant was a mature man, aged 38 or 39 years, and the complainant was only 12. The complainant said in her witness statement that during and immediately after the offending she was scared, confused and upset [21], [44].
(h)The complainant was significantly damaged by the offending. This is apparent from the contents of the complainant's victim impact statement. The appellant did not materially contest the destructive consequences of his offending on the complainant and her life.
(i)The appellant did not voluntarily disclose the offences. Indeed, he repeatedly denied the offending when first confronted by the complainant's mother. The force of his denials resulted in the mother questioning the complainant as to the truth of her allegations. It was only after additional and repeated questioning by the mother that the appellant ultimately admitted the offences.
The appellant's offending was mitigated by the following matters:
(a)The appellant was aged 54 years at the time of sentencing, and was loved and supported by his new partner and his adult children, these children being from a relationship before the appellant's marriage to the complainant's mother. However, the appellant is not of advanced years and he does not suffer from any material illness or disability.
(b)The appellant had sought professional assistance and engaged in counselling over a period of about four years after the offending. The correspondence from Mr Christman indicates that the appellant commenced counselling before the complainant's mother went to see Mr Christman and that the appellant continued to see Mr Christman for about one year after his marriage to the mother disintegrated. However, it is not apparent on how many occasions the appellant attended with Mr Christman between 1996 and 2000, and there is no information as to Mr Christman's diagnosis or his opinion as to the appellant's response to treatment (ts 18 ‑ 19). The author of the pre‑sentence report noted the appellant's statement that 'he engaged with his counsellor regularly in the early stages of his intervention, [but] … his employment became a factor to him participating in counselling on a regular basis'.
(c)Ms Barbuzza assessed the appellant as being at a low risk of re‑offending in a similar manner because his personal circumstances had changed significantly and he had implemented strategies to decrease his risk even further. However, as I have mentioned, Ms Barbuzza was of the opinion that his risk of reoffending in a similar manner 'is considered to be elevated in the event of him having unsupervised contact (particularly overnight) with children similar in age to [the complainant], particularly if he has established a relationship of trust with the child and/or their significant others'. The significance of this opinion is diminished by Ms Barbuzza's comment, elsewhere in her report, that the appellant's current partner and his family are aware of his offending behaviour and, as a result, they are 'likely to be vigilant in regards to him having any unsupervised contact with children in the future'.
(d)This is not a case where the offender has merely ceased to offend for a significant period. After his offending in 1995 or 1996, the appellant obtained treatment from Mr Christman and he appears to have been rehabilitated to a substantial degree. The sentencing judge noted the course of treatment that the appellant had undertaken with Mr Christman, but she did not make a finding that he had been rehabilitated. I am not persuaded that the appellant's rehabilitation is complete.
(e)He pleaded guilty at the earliest opportunity.
(f)The appellant had no relevant prior convictions and otherwise had good antecedents.
(g)He was remorseful. However, he appears to have only limited awareness of victim empathy issues.
In the circumstances, specific deterrence was not a sentencing consideration of importance. However, punishment of the appellant, general deterrence, the protection of vulnerable children, and denunciation of the appellant's conduct were important factors. As Anderson J noted in Bell, in cases of intra‑familial sexual abuse, the offender will often be a person who has led an otherwise blameless life and will usually be most unlikely to reoffend once the offending in question is disclosed or the opportunity to commit offences against the particular complainant has gone [12]. These are common features in cases of this kind and, as a result, their mitigatory weight is limited.
Child victims of sexual abuse commonly delay reporting the abuse to police for many years. Delay of this kind is therefore not, of itself, mitigatory. Delay may, however, as in the present case, provide an opportunity for the offender to express remorse and take advantage of opportunities for rehabilitation.
When all of the facts and circumstances of the offending and the appellant (including all factors which increase or decrease his culpability and the extent to which he should be punished) are evaluated and weighed, it is apparent that this offending was at the low end of the range of offences involving intra‑familial indecent dealing, contrary to s 329(4) read with s 329(10)(a) of the Code. The offending could not, however, contrary to the sentencing judge's view (ts 21), reasonably be characterised as 'at [a] very low level of offending' in the context of offences involving intra‑familial indecent dealing.
The offence of indecently dealing with a child who is a lineal relative or a de facto child is, in general, less serious than the offence of sexual penetration of a child who is a lineal relative or a de facto child, contrary to s 329(2), and the offence of procuring, inciting or encouraging a child who is a lineal relative or a de facto child to engage in sexual behaviour contrary to s 329(3), read, in each case, with s 329(9)(a) of the Code. These other offences carry a maximum available penalty of 20 years' imprisonment.
In my opinion, the sentencing judge was correct in deciding in effect that it was not appropriate to suspend the individual terms of imprisonment she had imposed. Her Honour was entitled to conclude that the relevant facts and circumstances did not take the case outside the ordinary disposition of a term of imprisonment to be served immediately. The various mitigating features did not enable the primary sentencing considerations of punishment, general deterrence, the protection of vulnerable children, and denunciation of the appellant's conduct to be satisfied without an immediate custodial sentence. The nature of the offending (notably, the repetition and escalation of the indecent dealing, the intimidation of the complainant into silence after the first incident, the existence of some planning or premeditation, and the long‑term destructive consequences for the complainant and her life) was too serious to permit any other sentencing disposition than terms of immediate imprisonment. It was appropriate for the various mitigating features to be reflected in the total effective term of immediate imprisonment. I accept that there may be unusual cases where a sentence other than immediate imprisonment should be imposed on an offender who has indecently dealt with a child under the age of 16 years, contrary to s 329(4) read with s 329(10)(a) of the Code, but I am satisfied that the present case is not one of them.
Ground 1 fails.
Ground 2
The appellant alleges that the sentencing judge erroneously thought that her sentencing discretion was fettered by appellate authority. It was alleged, in effect, that her Honour was of the view that, on the basis of appellate authority, a suspended term of imprisonment could never be imposed for the type of offending in question.
Counsel for the appellant referred to the following:
(a)During debate with counsel for the State, the sentencing judge said, 'isn't the principle that immediate imprisonment is called for in these sorts of cases?' (ts 16)
(b)In response, counsel for the State mentioned the decision of the Court of Criminal Appeal in Dempsey v The Queen (Unreported, WASCA, Library No 960059, 9 February 1996), and then said:
And I really haven't come across a case where a suspended sentence was imposed for a matter of sexual abuse against a stepdaughter in a family environment. I'm not sure if that answers your Honour's question (ts 16).
Her Honour said, 'Yes. I think it does. Thank you' (ts 16).
(c)During her sentencing remarks, her Honour said:
Unfortunately, because of the attitude of the courts and the seriousness of the offending so far as the victim is concerned, I am not prepared to suspend these sentences (ts 25).
The passages relied on by counsel for the appellant must be considered in the whole of the context in which they appear.
After the plea in mitigation, the sentencing judge discussed with counsel for the State the appropriate sentencing range, as follows:
It isn't just the case that the Court of Appeal has rejected appeals by sex offenders against young children who sought to have their sentence suspended.
Hasn't it been the case that when courts suspend terms that ‑ isn't the principle that immediate imprisonment is called for in these sorts of cases (ts 16)?
The 'principle' referred to by her Honour, as affirmed by the Court of Criminal Appeal and this court in appeals by the State or by offenders, is that immediate imprisonment is ordinarily the appropriate sentence in cases of intra‑familial sexual abuse. Despite some infelicity in her Honour's expression, I am satisfied that she did not misunderstand this 'principle'. It is apparent from the transcript of the sentencing hearing, read as a whole, that her Honour, a very experienced criminal judge, understood that the 'principle' to which she referred did not truncate her sentencing discretion, and that it was necessary for her to be positively satisfied, by reference to the particular facts and circumstances, that a term of imprisonment to be served immediately was the only appropriate sentencing option.
The sentencing judge observed, in her sentencing remarks:
The main issue is whether I could, in your circumstances, and given the matters in mitigation, whether I could suspend your sentence, and I have spent some time yesterday and this morning thinking about the matters in mitigation and whether they go so far as to allow me to simply suspend your term of imprisonment.
Unfortunately because of the attitude of the courts and the seriousness of the offending so far as the victim is concerned, I am not prepared to suspend these sentences (ts 25).
Again, despite some infelicitous language, these comments, read with the transcript as a whole, indicate that her Honour had decided that it was not appropriate to suspend the individual terms of imprisonment she had imposed because, in the context of the appellate authority that has affirmed that immediate imprisonment is ordinarily the appropriate sentence in cases of intra‑familial sexual abuse, an immediate custodial sentence was the only appropriate sentencing option. The appellant's offending (in particular, the impact of his offending on the complainant) was too serious to permit suspension.
In any event, even if the sentencing judge made the express error alleged in ground 2, I am satisfied, for the reasons I have given at [120] ‑ [127] above, that it was not open to suspend the individual terms of imprisonment. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
Ground 2 fails.
Ground 3
A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The principle applies, relevantly for present purposes, where an offender is to be sentenced for multiple offences. The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the relevant offences, viewed in their entirety, and after having regard to all the circumstances of the case, including those referable to the offender personally.
In my opinion, when the seriousness of the appellant's offending is examined in conjunction with the mitigating factors, and against the background of the maximum available penalty and the comparable cases to which I have referred, it is evident that the total effective sentence of 2 years 4 months' immediate imprisonment infringed the first limb of the totality principle. The total effective sentence was disproportionate to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances. Her Honour's sentence of 2 years 4 months is not consistent with offending at the low end of the range. A total effective sentence of 16 months' immediate imprisonment would satisfy all relevant sentencing objectives including punishment, general deterrence, the protection of vulnerable children, and denunciation of the appellant's conduct, and give proper recognition to the various mitigating features.
Ground 3 has been made out.
Conclusion
I would allow the appeal and set aside the sentencing decision made at first instance.
I would resentence the appellant to terms of immediate imprisonment, as follows:
(a)count 1: 2 months;
(b)count 2: 14 months;
(c)count 3: 12 months;
(d)count 4: 12 months.
The sentence for count 1 should be served cumulatively upon the sentence for count 2. The sentences for counts 3 and 4 should be served concurrently with each other and concurrently with count 2. The total effective sentence is therefore 16 months' immediate imprisonment. The sentences for counts 2, 3 and 4 should be taken to have commenced on 22 March 2011.
The appellant should remain eligible for parole.
Finally, I note that I have reduced the individual sentence for count 1 from 12 months to 2 months solely for the purposes of achieving a just outcome on totality. See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26] (Gummow, Callinan & Heydon JJ); Schaper v The State of Western Australia [2010] WASCA 178; (2010) 203 A Crim R 270 [75] (Buss JA, Mazza J agreeing).
MAZZA J: I agree with McLure P.
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