"H" v The Queen
[2002] WASCA 66
•28 MARCH 2002
"H" -v- THE QUEEN [2002] WASCA 66
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 66 | |
| COURT OF CRIMINAL APPEAL | 28/03/2002 | ||
| Case No: | CCA:128/2001 | 15 FEBRUARY 2002 | |
| Coram: | WALLWORK J ANDERSON J WHEELER J | 15/02/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | "H" THE QUEEN |
Catchwords: | Criminal law Sentencing Two rapes on same child Child 8 years old at first offence 11-12 years old at second offence Whether two 5-year terms of imprisonment to be served cumulatively too severe Decided on facts |
Legislation: | Nil |
Case References: | Bell v The Queen [2001] WASCA 40 (22 February 2001) Cameron v The Queen [2002] 8 HCA 6 (14 February 2002) Lowndes v The Queen (1999) 195 CLR 665 Podirsky v The Queen (1989) 43 A Crim R 404 R v Leggett [2000] WASCA 327 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 S v R [2001] WASCA 245 Woods v R (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "H" -v- THE QUEEN [2002] WASCA 66 CORAM : WALLWORK J
- ANDERSON J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Two rapes on same child - Child 8 years old at first offence - 11-12 years old at second offence - Whether two 5-year terms of imprisonment to be served cumulatively too severe - Decided on facts
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr R A Mazza
Respondent : Mr R E Cock QC
Solicitors:
Applicant : R A Mazza
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bell v The Queen [2001] WASCA 40
Cameron v The Queen [2002] 8 HCA 6
Lowndes v The Queen (1999) 195 CLR 665
Podirsky v The Queen (1989) 43 A Crim R 404
Case(s) also cited:
R v Leggett [2000] WASCA 327
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
S v R [2001] WASCA 245
Woods v R (1994) 14 WAR 341
(Page 3)
1 WALLWORK J: This application for leave to appeal against sentence was unanimously refused by the Court after a hearing on 15 February 2002. I now state my reasons for agreeing in that decision.
2 The applicant was on the 29 August 2001 sentenced to two terms of 5 years' imprisonment to be served cumulatively for two offences of rape which were committed against a child. The first offence was committed on or about 1 August 1973 and the second was committed on a date unknown, between the 1 January 1977 and 1 July 1977.
3 At the time when the offences were committed against the same child, the child was aged 8 years and between 11 and 12 years respectively. Both offences were forcible rapes of the child. The applicant applied for leave to appeal against the aggregate sentence basically on the grounds that it was too severe in all the circumstances.
4 The applicant had defended himself at a trial on six counts which alleged that he had committed rape upon the same child. He was convicted of the two offences which have been described above.
5 When considering the sentences imposed upon the applicant it is significant that he did not admit the charges and plead guilty to them thereby entitling him to a reduction in sentence - Cameron v The Queen [2002] 8 HCA 6 (14 February 2002).
6 When sentencing the applicant the learned trial Judge said that the first of the offences had occurred when the applicant was driving from Perth to Geraldton with four of his nieces. Their mother was in hospital and their father was living apart from the mother. On the way to Geraldton the applicant had stopped his car at about nightfall. He had invited the victim, who was the youngest of the girls, into the front seat. With the three other girls in the car the applicant had removed her panties from the young girl and had sexual intercourse. She was crying and whimpering as this occurred.
7 With respect to the second offence, the learned Judge said that this had occurred at the applicant's home at Two Rocks. The child was then 11 years of age and was there to baby sit the applicant's two children. The applicant had come up behind her, grasped her, pulled her panties down and had sexual intercourse with her despite her screams for him to stop.
8 The learned Judge said that at the time of the sentencing the applicant was 53 years of age. At the time of the offences he had been married to an older sister of the victim. He was no longer married to that
(Page 4)
- person and was living with another partner. We were informed on the hearing of this application that the present relationship had existed for approximately 12 years.
9 The learned sentencing Judge noted that the applicant had had a difficult upbringing and a very disrupted home life. He had spent quite some time in institutions. He had ceased schooling at the age of 13 years and become a farm labourer and later a truck driver. He had then turned to fishing. Ultimately in 1978 he had qualified for his skipper's ticket. For a number of years after that he was self-employed as a prawn fisherman.
10 There were some previous offences of dishonesty. After the two relevant offences which as stated above occurred in 1973 and 1977 respectively, in 1984 the applicant was convicted of an offence of incest against his daughter and an offence of sodomy against his son. On that occasion he was sentenced to a total of 5 years' imprisonment.
11 In sentencing the applicant for the offences the subject of this application, the learned Judge said that the offences against the girl had resulted in her suffering emotionally and mentally from the consequences of his actions. The applicant's conduct had also had serious effects on his own children. His Honour took into account that the applicant had not been convicted since 1984. However his Honour said:
"Your position during these more recent years however, does not enable me to conclude that you have any real sense of contrition for the harm you have done and the hurt you have caused to [the victim] and I see no sign that you are even today in any way genuinely remorseful. In cases of this nature it is an important consideration that a sentence properly reflects the abhorrence of the community for conduct of this nature involving young children and that in addition by clearly signalling to others that conduct of this nature will be appropriately dealt with, that the sentence may help in some way to protect other children from similar sorts of grave abuse in the hands of other people."
12 His Honour said that as the applicant had been convicted of two quite distinct offences against the victim, the offences should be marked by distinct and cumulative sentences. However, he said that having regard to the total effect and to the applicant's circumstances in more recent years,
(Page 5)
- he would reduce substantially the individual terms from what they otherwise would have been.
13 At the time the applicant committed the offences the maximum penalty for each of them was a sentence of life imprisonment. At the time he was sentenced the applicant was 53 years of age. The relevant offences did not come to light when the applicant was earlier sentenced to imprisonment in 1984. On that occasion he had been ordered to serve a minimum term of 2 years 3 months' imprisonment.
14 After his release from prison in 1986 the applicant had suffered from ill health including a heart attack and diabetes. Since 1989 he has been in a long term relationship with his present partner who knew of his history and has remained loyal to him and continued to support him after his convictions. At the time of the relevant offences the applicant had a long standing drinking problem which he no longer had at the time he was sentenced in August 2001.
15 It was contended on the hearing of this application that the aggregate sentence of 10 years' imprisonment was too severe. Counsel relied on remarks of Malcolm CJ in Podirsky v The Queen (1989) 43 A Crim R 404 at 411. However, in my view the remarks of the Chief Justice in that case do not assist the applicant because on that occasion the Chief Justice said amongst other things that:
"In the case of a single act of aggravated assault by penile penetration much depends on the circumstances of the aggravation, but where the relevant circumstance is that the complainant is under the age of 16 years, a sentence of about 8 years is commonly imposed. Again this could be reduced by mitigating factors."
16 In this case there were two isolated offences separated by a period of 3 1/2 years.
17 Counsel for the applicant submitted that due to the long time since the offences had been committed and the other relevant facts, including that the applicant had not committed any offences since 1984 and had rehabilitated himself, the sentences should have been less severe. Counsel quoted from the words of Anderson J in Bell v The Queen [2001] WASCA 40 (22 February 2001) where his Honour said:
"However I think it reasonably clearly appears from the authorities referred to, that in the general run of cases, the delay
(Page 6)
- will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such, or other favourable factors have positively emerged in the time between the offences and the passing of the sentence."
18 It is significant that in the following paragraph in Bell (supra) Anderson J said:
"Where nothing more than mere lapse of time without any conviction is relied upon for the exercise of clemency, the sentencing court could properly take the view that it was always open to the offender to give himself or herself up and accept his or her just desserts. Failure to do so and success in keeping guilt hidden ought not to be rewarded by sentencing discounts. The mere fact that an offender has led a blameless life between the time of the offences and the time of sentencing is not necessarily an indication of rehabilitation, especially in cases of intra familial sexual abuse of young children."
19 In par 12 of the same decision Anderson J 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 re-offend 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."
20 Later in the same decision his Honour also said that the first step towards genuine rehabilitation must surely be a willingness to acknowledge the offending behaviour itself and that it was wrong. His Honour said:
(Page 7)
- "There is nothing of that in this case. The applicant has never admitted the offences and has never shown any remorse. He pleaded not guilty."
21 In my view, his Honour's remarks in Bell (supra) are apposite to this case.
22 It was submitted for the applicant that the 10 years aggregate sentence which had been imposed upon him had been founded upon general deterrence and punishment and that in all the circumstances it was too severe to reflect those aspects of the sentencing process.
23 In my opinion it could not be said in this case that the overall sentence was too severe or that either of the sentences in themselves were too severe. As was stated by counsel for the respondent, the facts were that ten years after the first offence against the relevant child, the applicant had committed offences of incest and sodomy against his own children. In my view the learned Judge was correct to state that in all the circumstances the sentences imposed were needed by way of general deterrence in order, if possible, to protect defenceless young children from grave abuse by adults.
24 The sentences were clearly well within the discretionary range of sentences which could have been imposed by the learned Judge. It is significant that Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callaghan JJ said in Lowndes v The Queen (1999) 195 CLR 665 at 671:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing Judge are well established… Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercises his or her discretion. This is basic. The discretion which the law commits to a sentencing Judge is of vital importance in the administration of our system of criminal justice."
25 For the above reasons I acceded in the order of the Court that the application should be dismissed.
(Page 8)
26 ANDERSON J: My reasons for joining in the decision of the Court to refuse the application for leave to appeal are fully expressed in the reasons prepared by Wallwork J, which I have read in draft. There is nothing I wish to add to those reasons.
27 WHEELER J: I agree with the reasons of Wallwork J, which reflect my own reasons for joining in ordering that the application should be dismissed.
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