Headley v The State of Western Australia
[2018] WASCA 37
•19 MARCH 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HEADLEY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 37
CORAM: BUSS P
MAZZA JA
HEARD: 9 NOVEMBER 2017
DELIVERED : 19 MARCH 2018
FILE NO/S: CACR 90 of 2017
BETWEEN: RAYMOND BRIAN HEADLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 1865 of 2015
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of 31 counts of sex offending against children - Appellant aged between 31 and 46 years at the time of the offending - Appellant aged 68 when sentenced - Appellant had relevant previous convictions of a sexual nature against children - Total effective sentence of 12 years' imprisonment - Totality principle
Legislation:
Criminal Code (WA), s 182 (repealed), s 183 (repealed), s 324C (repealed), s 324E (repealed), s 321(2), s 321(4)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AIM v The State of Western Australia [2014] WASCA 155
APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59
ARK v The State of Western Australia [2014] WASCA 45
BPR v The State of Western Australia [No 2] [2007] WASCA 200
Braham v The Queen (1994) 116 FLR 38
CJF v The State of Western Australia [2012] WASCA 69
DKA v The State of Western Australia [2015] WASCA 112
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Hughes v The State of Western Australia [2014] WASCA 78
KSN v The State of Western Australia [2017] WASCA 156
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
LJH v The State of Western Australia [2016] WASCA 155
M v The State of Western Australia [2006] WASCA 256
Mills v The State of Western Australia [No 2] [2017] WASCA 52
PP v The State of Western Australia [2004] WASCA 144
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
RDC v The State of Western Australia [2012] WASCA 16
RFS v The State of Western Australia [2012] WASCA 58
SG v The State of Western Australia [2013] WASCA 236
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v PJW [2015] WASCA 113
Woods v The Queen (1994) 14 WAR 341
JUDGMENT OF THE COURT: The appellant has applied for leave to appeal against sentence.
On 24 March 2017, the appellant was convicted, after a trial in the District Court before Stevenson DCJ and a jury, of 31 counts in an indictment.
The offences comprised:
(a)13 counts of unlawfully and indecently dealing with a child under the age of 14 years, contrary to s 183 (repealed) of the Criminal Code (WA) (the Code);
(b)six counts of inciting a child under the age of 14 years to unlawfully and indecently deal with him, contrary to s 183 (repealed) of the Code;
(c)one count of attempted carnal knowledge against the order of nature, contrary to s 182 (repealed) of the Code;
(d)four counts of aggravated indecent assault, contrary to s 324C (repealed) of the Code;
(e)three counts of aggravated sexual penetration without consent, contrary to s 324E (repealed) of the Code;
(f)three counts of aggravated indecent dealing with a child over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Code; and
(g)one count of aggravated sexual penetration of a child over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code.
The offending occurred between 1980 and 1994. It involved the sexual abuse of five boys aged between 10 and 13 years.
The appellant was aged between 31 and 46 years at the time of the offending and was aged 68 when sentenced.
On 30 March 2017, his Honour imposed a total effective sentence of 12 years' imprisonment. The sentence was backdated to 13 May 2015. A parole eligibility order was made.
The appellant's sole ground of appeal alleges that the total effective sentence infringed the first and second limbs of the totality principle.
We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.
The facts and circumstances of the offending and the appellant's personal circumstances and antecedents
The facts and circumstances of the offending were summarised by the trial judge in his sentencing remarks. It is unnecessary to repeat the summary.
Most of the offences involved the appellant performing oral sex on or receiving oral sex from the victim or the appellant masturbating the victim or being masturbated by the victim. The count of attempted carnal knowledge against the order of nature involved the appellant attempting to have anal sex with the victim.
His Honour noted a number of aggravating factors in the appellant's offending.
First, the offending occurred over an extensive period of about 14 years between 1980 and 1994. The offending was sustained and happened whenever the opportunity arose.
Secondly, the offending was planned and premeditated.
Thirdly, the appellant groomed the victims by giving them money, alcohol and the opportunity to drive his motor vehicle. The appellant induced the victims to engage in sexual activity with him.
Fourthly, the appellant pursued disadvantaged and vulnerable boys from dysfunctional families. He took advantage of the victims' unfortunate circumstances to have regular contact with them. This included making an arrangement with the father of one of the victims for the victim to stay at the appellant's place of residence on the pretense that the appellant would introduce the victim to a work opportunity at a hotel. The offending against the boy involved a serious breach of the trust placed in the appellant by the father. The breach of trust extended to the father's other boys, both of whom were also victims. The appellant was able to assume a fathering role in respect of the three boys and give them opportunities that the father could not. Similarly, the appellant engaged in a relationship with the welfare workers responsible for another victim who was a ward of the State. The appellant ingratiated himself with the welfare workers and, by that means, created an air of legitimacy in relation to his contact with the boy. All of the arrangements we have recounted facilitated the continuing sexual abuse.
The trial judge accepted that the appellant did not engage in any direct physical violence or make any direct threats. None was necessary. The victims were significantly deprived. They were in and out of foster homes and, in the case of three of the victims, lived variously in their father's home, on the street and in hostels or detention centres. One of the victims was asked at the trial why he returned repeatedly to the appellant's place despite knowing that he would be abused. The victim answered:
Sometimes in the situation that I was [in] at that age, you take the lesser of two evils. And sometimes being at [the appellant's place] was [the lesser] (ts 567).
His Honour said that the charged offences were representative of a course of conduct, but acknowledged that the appellant was to be punished only for the offences of which he had been convicted. However, the charged offences had to be understood in the context that they were not isolated instances of abuse.
The appellant had a prior criminal record. Notably, in 1975, 1977, 1979 and 1982 he was convicted of a number of offences of a sexual nature against a number of boys. Those convictions demonstrated that the appellant had a sexual attraction to young boys and a willingness to act upon it whenever the opportunity arose.
The trial judge observed that the appellant had no relevant criminal record for any offending subsequent to the offences for which he was to be sentenced. However, the appellant was not to be sentenced on the basis that he was of good character.
His Honour found that the appellant had no remorse. He had no insight in relation to the impact of his offending on the victims. The appellant was unwilling to accept any responsibility for his offending.
The trial judge mentioned that the appellant was aged 68 at the time of the sentencing hearing. That was a relevant sentencing factor; in particular, in relation to the application of the totality principle. However, the appellant had committed the offences in question between the ages of 31 and 46. Thereafter, he had been able to enjoy life in the community. By contrast, during the intervening period, the victims had carried the burden of the sexual abuse which the appellant had inflicted.
His Honour referred to an email dated 28 March 2017 from Dr Fraser Moss concerning various medical conditions suffered by the appellant, namely:
(a)gastroesophageal reflux;
(b)ankylosing spondylitis;
(c)cirrhosis of the liver with some portal hypertension;
(d)chronic renal failure;
(e)enlarged spleen; and
(f)psoriasis.
The appellant was receiving ongoing treatment with medication for some of those conditions. His health was monitored regularly by the prison authorities and his medical conditions had remained stable since he was taken into custody on 13 May 2015.
The trial judge accepted that, by reason of his medical conditions, the appellant's time in custody 'will perhaps otherwise be harder than it might have been in the community but it is not a particularly significant hardship' (ts 15). His Honour found that there was no evidence that imprisonment would 'greatly adversely affect' the appellant's health (ts 15).
Although the appellant did not have the mitigation that pleas of guilty would have brought, he did, to some extent, facilitate the efficient conduct of the trial.
His Honour had regard to victim impact statements from three of the victims. Each of the victims had experienced a loss of trust in relationships with adults. The offending had affected them significantly throughout their lives.
The merits of the ground of appeal
The maximum penalty for:
(a)each offence against s 183 (repealed) of the Code was 7 years' imprisonment;
(b)the offence against s 182 (repealed) of the Code was 7 years' imprisonment;
(c)each offence against s 324C (repealed) of the Code was 6 years' imprisonment;
(d)each offence against s 324E (repealed) of the Code was 20 years' imprisonment;
(e)each offence against s 321(4) of the Code was, in the circumstances of aggravation, 10 years' imprisonment; and
(f)the offence against s 321(2) of the Code was, in the circumstances of aggravation, 20 years' imprisonment.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The second limb of the totality principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter;[1] Braham v The Queen;[2] R v Whyte;[3] Gulyas v The State of Western Australia;[4] R v Iles.[5]
[1] R v Hunter (1984) 36 SASR 101, 103 (King CJ).
[2] Braham v The Queen (1994) 116 FLR 38, 51 (Angel J).
[3] R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 - 406 (Winneke P; Bongiorno & O'Bryan AJJA agreeing).
[4] Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P; McLure & Miller JJA agreeing).
[5] R v Iles [2009] VSCA 197 [31] - [35] (Redlich JA; Neave JA agreeing).
However, whether and, if so, to what extent, leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations relating to advanced age cannot be accommodated.
In Smith v The State of Western Australia,[6] Buss JA (McLure P & Mazza J agreeing) referred to various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the duties imposed on the Chief Executive Officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act and on medical officers to ensure that medical care and treatment is provided to prisoners [68].
[6] Smith v The State of Western Australia [2010] WASCA 176.
The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen;[7] PP v The State of Western Australia;[8] M v The State of Western Australia.[9]
[7] Woods v The Queen (1994) 14 WAR 341, 345 - 346 (Anderson J; Malcolm CJ & Seaman J agreeing).
[8] PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J; Malcolm CJ & Murray J agreeing).
[9] M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA; Steytler P & McLure JA agreeing).
There is no tariff for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki.[10]
[10] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [68] - [69] (Steytler P; McLure JA agreeing).
We have considered a number of cases with at least some features comparable to the appellant's offending. See, in particular, RDC v The State of Western Australia;[11] RFS v The State of Western Australia;[12] CJF v The State of Western Australia;[13] APC v The State of Western Australia;[14] SG v The State of Western Australia;[15] ARK v The State of Western Australia;[16] AIM v The State of Western Australia;[17] LFG v The State of Western Australia;[18] DKA v The State of Western Australia;[19] The State of Western Australia v PJW;[20] LJH v The State of Western Australia;[21] KSN v The State of Western Australia;[22] and the cases referred to in those decisions. We have also considered other cases cited by the appellant, namely BPR v The State of Western Australia [No 2];[23] The State of Western Australia v FJG;[24] Hughes v The State of Western Australia;[25] and Mills v The State of Western Australia [No 2].[26]
[11] RDC v The State of Western Australia [2012] WASCA 16.
[12] RFS v The State of Western Australia [2012] WASCA 58.
[13] CJF v The State of Western Australia [2012] WASCA 69.
[14] APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59.
[15] SG v The State of Western Australia [2013] WASCA 236.
[16] ARK v The State of Western Australia [2014] WASCA 45.
[17] AIM v The State of Western Australia [2014] WASCA 155.
[18] LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178.
[19] DKA v The State of Western Australia [2015] WASCA 112.
[20] The State of Western Australia v PJW [2015] WASCA 113.
[21] LJH v The State of Western Australia [2016] WASCA 155.
[22] KSN v The State of Western Australia [2017] WASCA 156.
[23] BPR v The State of Western Australia [No 2] [2007] WASCA 200.
[24] The State of Western Australia v FJG [2012] WASCA 206.
[25] Hughes v The State of Western Australia [2014] WASCA 78.
[26] Mills v The State of Western Australia [No 2] [2017] WASCA 52.
It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the totality principle. 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.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
In the present case, the very serious nature of the appellant's offending, including the vulnerability of the victims, is apparent from the trial judge's summary of the facts and circumstances of the offending, including the aggravating factors which we have described.
The appellant was, of course, entitled to proceed to trial, but he was unable to claim the mitigation that pleas of guilty would have brought.
The appellant's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not, of course, aggravate the offending in question, but his record demonstrated that he was not of good character.
There was little by way of mitigation, apart from his advanced age, his medical conditions and his contribution towards the efficient conduct of the trial. The appellant was not youthful or inexperienced for sentencing purposes. He did not have the mitigation of being otherwise of good character, even though he had not relevantly offended during the period between committing the offences in question and being sentenced. No victim empathy was apparent. The appellant was unremorseful and did not accept any responsibility for his criminal conduct.
In our opinion, the total effective sentence of 12 years' imprisonment did not infringe the first limb of the totality principle. A custodial term of that length was required in order properly to reflect the very serious nature of the appellant's offending as a whole, and to give effect to the sentencing considerations of appropriate punishment and general deterrence, having regard to the need to protect vulnerable children. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the vulnerability of the victims, the pattern of sentencing in reasonably comparable cases and the limited mitigation referred to by the trial judge.
Further, in our opinion, the total effective sentence of 12 years' imprisonment does not infringe the second limb of the totality principle. Unfortunately, from the appellant's viewpoint, the very serious nature of his offending, considered as a whole, and the necessity for appropriate punishment and the demands of general deterrence significantly reduced the extent to which humanitarian considerations, based on the appellant's advanced age and medical conditions, could be accommodated in the overall sentencing disposition. Despite the appellant's advanced age and medical conditions, and notwithstanding it is possible that he may die in prison or that upon release he may not have any prospect of a useful life, a more lenient total effective sentence was not appropriate.
It is not reasonably arguable that error by his Honour in the exercise of his discretion should be inferred, based on the first or the second limb of the totality principle, from the sentencing outcome. The total effective sentence of 12 years' imprisonment was not unreasonable or plainly unjust.
The sole ground of appeal is without merit.
Conclusion
The sole ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
6
25
1