HFM v The State of Western Australia
[2012] WASCA 217
•30 OCTOBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HFM -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 217
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 22 AUGUST 2012
DELIVERED : 30 OCTOBER 2012
FILE NO/S: CACR 189 of 2011
BETWEEN: HFM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
File No :IND BUN 51 of 2011
Catchwords:
Criminal law - Appeal against sentence - Child sex offences - 10 discrete offences committed between 1995 and 2001 - Fasttrack pleas of guilty - Appellant aged 75 when sentenced - Appellant suffering from profound hearing loss and severe osteoarthritis in his right knee - Total effective sentence of 6 years' immediate imprisonment with parole eligibility - Whether total effective sentence infringed the totality principle - Whether the age disparity between the appellant and the complainant was an aggravating factor - Whether the sentencing judge took into account irrelevant prejudicial information
Legislation:
Criminal Code (WA), s 320(2), s 320(4)
Result:
Applications for leave to adduce additional evidence dismissed
Leave to appeal granted on grounds 2, 3 and 4
Leave to appeal refused on grounds 5 and 6
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Mr D S Hunter
Respondent: Ms S H Linton
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bell v The Queen [2001] WASCA 40
Braham v The Queen (1994) 116 FLR 38
GJT v The State of Western Australia [2011] WASCA 263
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
JS v The State of Western Australia [2012] WASCA 198
KJW v The State of Western Australia [2012] WASCA 162
LJP v The State of Western Australia [2010] WASCA 85
M v The State of Western Australia [2006] WASCA 256
MPD v The State of Western Australia [2008] WASCA 57
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 Law; Ex parte Attorney-General [1995] QCA 444; [1996] 2 Qd R 63
R v Smith (1987) 44 SASR 587
R v Tiso (1990) 12 Cr App R (S) 122
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
SAP v The State of Western Australia [2011] WASCA 155
Sell v The Queen (1995) 15 WAR 240
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
Woods v The Queen (1994) 14 WAR 341
McLURE P: I agree with Buss JA.
BUSS JA: On 14 November 2011, the appellant was convicted in the District Court, on his fast‑track pleas of guilty, on 10 counts of sexual offending against his son's stepdaughter (C).
The sentencing judge, Stone DCJ, imposed a total effective sentence of 6 years' imprisonment.
The appellant appeals against this sentence.
The sentencing judge's sentencing disposition
The appellant's offending involved five discrete incidents. The first incident occurred on or about 5 January 1995; the second on a date unknown between 1 April 1997 and 30 April 1997; the third on a date unknown between 30 April 1997 and 1 November 1997; the fourth on a date unknown between 30 September 1999 and 1 November 1999; and the fifth on or about 12 November 2001.
The sentencing judge imposed individual terms of immediate imprisonment as follows:
Count
Offence
Maximum Penalty
Sentence
Incident 1: On or about 5 January 1995
1
Indecent dealing: child under 13 (rubbing vagina)
10 years
18 months
2
Indecent dealing: child under 13 (removing clothes and staring at vagina)
10 years
12 months
3
Indecent dealing: child under 13 (rubbing vagina)
10 years
18 months
4
Sexual penetration: child under 13 (cunnilingus)
20 years
3 years
Incident 2: Date unknown between 1 April 1997 - 30 April 1997
5
Indecent dealing: child under 13 (rubbing clitoris)
10 years
18 months
6
Sexual penetration: child under 13 (digital penetration of vagina)
20 years
3 years
Incident 3: Date unknown between 30 April 1997 - 1 November 1997
7
Indecent dealing: child under 13 (rubbing clitoris)
10 years
18 months
Incident 4: Date unknown between 30 September 1999 - 1 November 1999
8
Indecent dealing: child under 13 (rubbing vagina)
10 years
18 months
9
Indecent dealing: child under 13 (rubbing vagina)
10 years
18 months
Incident 5: On or about 12 November 2001
10
Indecent dealing: child under 13 (rubbing vagina)
10 years
18 months
His Honour ordered that the sentences for counts 4, 5 and 10 be served cumulatively upon each other, and that the sentences for the other counts be served concurrently with each other and concurrently with the accumulated sentences for counts 4, 5 and 10. The total effective sentence was therefore 6 years' imprisonment. A parole eligibility order was made. The total effective sentence commenced on 14 November 2011.
The relevant facts and circumstances: incident 1 (counts 1 to 4)
On or about 5 January 1995, the appellant was babysitting C and her brothers at the children's home.
During the early evening C was sitting on the appellant's lap watching television. He began rubbing C over her clothes on her upper thigh near her vagina. He then pushed her legs apart and used his hand to rub on and around her vagina (count 1).
The appellant then carried C and placed her on a bunk bed. He removed her track pants and knickers before bending down and staring at her vagina for some time (count 2). Next, he rubbed C's vagina with his fingers for a couple of minutes (count 3). He then licked her on and around her vagina for at least two more minutes (count 4). The appellant desisted when he heard C's mother and stepfather returning from a shopping trip.
When counts 1 to 4 occurred the appellant was aged 58 and C was 5.
The relevant facts and circumstances: incident 2 (counts 5 and 6)
During an evening in April 1997 C was in bed reading a book. The appellant, who was visiting the family, entered her bedroom and sat next to her bed. The appellant read C a book. While engaged in this activity, he put his hand under the bedding and inside C's underwear. He rubbed her clitoris with his fingers (count 5). He stopped when C's mother walked past the open door to C's bedroom.
After C's mother moved away, the appellant again put his hand under the bedding and inside C's underwear. He penetrated her vagina with one of his fingers. The penetration was painful for C. It caused vaginal bleeding. C saw blood on her underwear the next morning (count 6).
When counts 5 and 6 occurred the appellant was aged 61 and C was 8.
The relevant facts and circumstances: incident 3 (count 7)
On a date unknown between May 1997 and October 1997, C was at home from school. She had tonsillitis. The appellant and his wife were babysitting her. During the morning, C and the appellant were alone in the lounge room playing chess. The appellant put his hand under a blanket that was covering C. He placed his hand under her clothing and rubbed her clitoris (count 7).
When count 7 occurred the appellant was aged 61 and C was 8.
The relevant facts and circumstances: incident 4 (counts 8 and 9)
On a date unknown between September 1999 and November 1999, the appellant collected C from her home and drove with her to his place of work. The appellant stood behind C, put his hand down her jeans and under her knickers, and rubbed her vagina (count 8). A short time later, C approached her mother, who was in the vicinity, and said she wanted to go home. The appellant volunteered to drive C to her home under the pretence of having to visit a nearby shop. On the journey, the appellant rubbed C's vagina over her clothing (count 9).
When counts 8 and 9 occurred the appellant was aged 63 and C was 10.
The relevant facts and circumstances: incident 5 (count 10)
On or about 12 November 2001, C and her family went to the appellant's home to attend a family birthday party. During the celebration, C was in the appellant's bedroom playing games on his computer. He entered the room and approached C, who was seated with her back to him. He put his hand down her pants and rubbed on and around her vagina (count 10). The appellant desisted when C's brother entered the room.
When count 10 occurred the appellant was aged 65 and C was 12.
C's first complaint
When C was aged 8 she complained to her grandmother about the appellant's misconduct. C was taken to her see her mother, who accused her of lying and slapped her face. C's stepfather then hit her four times with a leather belt on her lower legs and lower back.
The appellant's interview with the police
On 29 September 2010, the appellant was interviewed by police. He denied committing the offences.
The appellant's personal circumstances and antecedents, and the expert reports before the sentencing judge
The appellant was born on 24 April 1936. He was aged between 58 and 65 when the offending occurred and was 75 when sentenced. He had no prior convictions.
The expert reports before the sentencing judge included a psychological report from a psychologist, Steve Jobson, letters from the appellant's general medical practitioner, Dr Basudeb Saharay, and a pre‑sentence report.
The appellant admitted to Mr Jobson that he was guilty of all of the offences, and he expressed appropriate remorse and shame for his behaviour.
The appellant was consistently employed in a variety of occupations until about 1990, when work injuries resulted in his being made redundant at the age of 53. This undesired redundancy was distressing for the appellant. He had some difficulty adjusting to his enforced retirement. The appellant and his wife could not maintain the mortgage payments on their home. They were obliged to relocate to a caravan park in a town in rural Western Australia. The appellant's offending behaviour commenced at this location.
Mr Jobson hypothesised that the disruption to the appellant's life consequent upon his redundancy resulted in feelings of confusion, emotional insecurity and loneliness. The appellant informed Mr Jobson that he was unsure why he committed the offences. The offending ceased when the complainant was 12. According to the appellant, 'she asked me not to do it anymore'.
Mr Jobson noted that the actuarial risk assessment procedure (Static 99) indicated that the appellant was in the low category for reoffending sexually and that the Risk of Sexual Violence Protocol (RSVP) revealed the presence of very few recognised risk factors. It appears that the appellant now has erectile dysfunction and no sexual desire. His children are aware of his offending behaviour. The appellant's wife, whom he married in 1964, died in 2008.
The appellant has profound hearing loss and the possibility of a cochlear implant was being investigated. He has severe osteoarthritis in his right knee and is on a waiting list for a total knee replacement. The appellant does not suffer from cognitive impairment or dementia. He had a score of 5/15 on the geriatric depression scale. A score of over 5 is indicative of depression. A variety of blood and urine tests were satisfactory for a person of his age.
The author of the pre‑sentence report said that the appellant was forthright in admitting his guilt. The appellant said that the offending may have occurred because 'he may have enjoyed the "feel and touch" of the victim'. He denied, however, being sexually aroused at the time. The author expressed the view that the appellant appeared to be genuinely remorseful for, and bewildered by, his behaviour.
The sentencing judge's interaction with defence counsel during sentencing submissions
During counsel for the appellant's submissions at the sentencing hearing, the sentencing judge referred to a statement in the prosecution brief concerning charges that had been brought against the appellant for sexual misconduct against the complainant's sister, S. One charge alleged that between 1 February 2002 and 5 March 2002 the appellant indecently dealt with S, a child who was to his knowledge a lineal relative. Three other charges alleged that between 1 January 2009 and 9 October 2009 the appellant indecently dealt with S, a child who to his knowledge was a lineal relative. However, the charges were discontinued on 13 July 2011.
During the sentencing hearing, the following exchange occurred between counsel for the appellant and the sentencing judge in relation to the charges concerning S:
STONE DCJ: The matter surfaced in 2002. What happened to [S]?
HUNTER, MR: Those charges were all discontinued.
STONE DCJ: Were they?
HUNTER, MR: Yes.
STONE DCJ: They were discontinued according to page 59 of the brief. His wife was diagnosed with cancer, so the parents of the children got the charges dropped.
HUNTER, MR: No, your Honour. That's not ‑ they came back.
STONE DCJ: No. It didn't happen that way?
HUNTER, MR: No, your Honour. That did end but they came back.
STONE DCJ: They came back all right.
HUNTER, MR: Yes, in 2010 and 2011 but [the appellant] basically had an alibi. He wasn't in the state at the time and there was plane tickets and there was a testimony from
STONE DCJ: But he didn't have an alibi for this girl, did he, Mr Hunter?
HUNTER, MR: No, he didn't but he didn't commit the other offences.
STONE DCJ: All right (ts 8).
A little later, this exchange occurred between the prosecutor, counsel for the appellant and his Honour about the discontinued charges:
WALTON, MR: Your Honour, the mother of the complainant at brief page 59, at paragraph 58 talks about an investigation in relation to [S] being - the investigation stopping as a result of [the appellant's wife] being diagnosed with cancer.
STONE DCJ: Yes, I understood that.
HUNTER, MR: But again, your Honour, in regard to [S], she is irrelevant. That has been discontinued and it's not a matter that's relevant to the court in regard to these matters (ts 12).
The sentencing judge's sentencing remarks
The sentencing judge, in his sentencing remarks, described the facts and circumstances of the offending. He also noted C's victim impact statement, and said that the appellant's offending had a traumatic effect on her childhood. He added that the appellant had stolen her innocence and caused her considerable unhappiness.
His Honour examined the appellant's personal circumstances and antecedents. He accepted that the appellant's enforced retirement had a severe emotional or psychological impact upon him and that he had a history of health problems.
The sentencing judge recorded that the appellant had no prior conviction for any offence and that he had pleaded guilty on the fast‑track system.
His Honour said that he had taken into account the fast‑track pleas, the appellant's expression of remorse and his old‑age and health issues. He accepted that the appellant was at a low risk of reoffending.
The sentencing judge observed:
(a)The sentencing disposition must punish the appellant and deter 'both you and others from committing offences in the future' (ts 24).
(b)The offences in question were committed over a lengthy period.
(c)There was a 'gross breach of trust' involved in the offending (ts 24).
(d)C was a child and there was 'disparity in your ages' (ts 24). His Honour described this disparity as an 'aggravating feature' of the offending (ts 24).
(e)The pre‑sentence report indicated that the appellant had shown 'little insight into your offending behaviour' (ts 24).
The grounds of appeal
The appellant relies on six grounds of appeal.
Ground 1 alleges, in substance, that the total effective sentence of 6 years' imprisonment infringed the totality principle.
Ground 2 alleges that the sentencing judge 'failed to sufficiently take into account' the increased arduousness of imprisonment for the appellant as a result of his significant 'health issues and physical frailty'.
Ground 3 alleges that as a result of the appellant's 'age, significant health problems and physical frailty', the total effective sentence was 'crushing'.
Ground 4 alleges that the sentencing judge 'did not sufficiently take into account the need to exercise a degree of mercy when sentencing the appellant' as a result of his 'advanced age, physical frailty and significant health issues'.
Ground 5 alleges that the sentencing judge 'improperly considered irrelevant and prejudicial material concerning other unproven alleged indecent dealing offences concerning [C's] sister which had been discontinued'.
Ground 6 alleges, in the alternative to ground 5, that his Honour's consideration of 'the discontinued unproven indecent dealing offences concerning [C's] sister' would have caused a fair‑minded and informed member of the public to have a reasonable apprehension that his Honour, in sentencing the appellant, had been 'improperly influenced by unproven, irrelevant and prejudicial material'.
On 17 February 2012, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on the other grounds to the hearing of the appeal.
The appellant's applications for leave to adduce additional evidence in the appeal
On 16 February 2012, the appellant filed an application for leave to adduce additional evidence in the appeal. The evidence in question is embodied in an affidavit sworn 15 February 2012 by counsel for the appellant, Derek Scott Hunter. On 17 February 2012, Mazza JA referred the application to the hearing of the appeal.
On 2 August 2012, the appellant filed another application for leave to adduce additional evidence in the appeal. This evidence is contained in an affidavit sworn 24 July 2012 by the appellant. On 10 August 2012, I referred the application to the hearing of the appeal.
Grounds 1, 2, 3 and 4: relevant sentencing principles
It is convenient to consider grounds 1, 2, 3 and 4 together. These grounds raise, in substance, an allegation that the total effective sentence infringed one or other limb of the totality principle.
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 circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. The second limb of the principle is that the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. These propositions are well-established by the case law.
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 ‑ 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] - [35] (Redlich JA, Neave JA agreeing).
However, whether and, if so, to what extent leniency should be given to an offender of advanced age, depends on all of the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.
The illness of an offender may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. However, as King CJ (Cox & O'Loughlin JJ agreeing) stressed in R v Smith (1987) 44 SASR 587, 589:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
See also Gulyas [36] ‑ [37].
In Smith v The State of Western Australia [2010] WASCA 176, I reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. I noted (McLure P & Mazza J agreeing):
First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public [68].
At the material time, the maximum penalty for:
(a)counts 1 ‑ 3, 5 and 7 ‑ 10, being indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code), was 10 years' imprisonment; and
(b)counts 4 and 6, being sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Code, was 20 years' imprisonment.
As I have mentioned, his Honour ordered that the sentences for counts 4 (3 years), 5 (18 months) and 10 (18 months) be served cumulatively upon each other, and that the sentences for the other counts be served concurrently with each other and concurrently with the accumulated sentences for counts 4, 5 and 10. The result was a total effective sentence of 6 years' imprisonment.
The primary sentencing considerations for offences of the kind committed by the appellant are punishment of the offender and specific and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
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 available penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69] (Steytler P, McLure JA agreeing).
There is a distinction between cases in which an offender merely has not been convicted of any offences 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. See Sell v The Queen (1995) 15 WAR 240, 261 (Malcolm CJ, Kennedy & Ipp JJ agreeing).
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).
I have reviewed the sentencing outcomes in LJP v The State of Western Australia [2010] WASCA 85; SAP v The State of Western Australia [2011] WASCA 155; GJT v The State of Western Australia [2011] WASCA 263; KJW v The State of Western Australia [2012] WASCA 162; and JS v The State of Western Australia [2012] WASCA 198, and in the decisions referred to in those cases. It is unnecessary to set out the relevant facts and circumstances or the sentences imposed.
Grounds 1, 2, 3 and 4: their merits
In the present case, the appellant's offending was undoubtedly serious. It involved the sexual abuse of C on five separate occasions over a period of about six and a half years. At the material time she was aged between 5 and 12. The digital penetration, the subject of count 6, was especially serious. It caused C pain and vaginal bleeding.
The appellant was a 'grandfather figure' in relation to C. Most of the offending occurred when he was entrusted with her care as a babysitter. C's youth made her extremely vulnerable.
When C complained about the offending, at the age of 8, she was branded a liar and physically punished by her mother and stepfather. C's victim impact statement reveals that she has suffered significant emotional trauma. The offending, and the summary and punitive rejection of her complaint, caused her anxiety, shame, humiliation and a substantial loss of self‑esteem. She contemplated suicide.
It is necessary, in evaluating the merits of grounds 1, 2, 3 and 4, to appreciate that the counts in the indictment were not representative offences. The appellant's sexual abuse of C, although serious, was confined to five discrete incidents. Also, the offending appears to have been impulsive rather than planned or premeditated.
There were a number of mitigating factors. These comprised, principally, the appellant's fast‑track pleas of guilty; his expression of remorse and shame; the fact that his enforced retirement had a severe emotional impact on him; the absence of a prior criminal record; and the assessment that he was at a low risk of reoffending.
The appellant's advanced age (he was 75 when sentenced) and his health issues were relevant sentencing considerations.
The appellant's significant hearing and mobility difficulties will result in his imprisonment being more arduous than would ordinarily be the case. These difficulties were apparent from the evidence before the sentencing judge and their existence is reaffirmed in the proposed additional evidence. There was and is no suggestion, however, that the appellant will not be properly cared for while in custody. The evidence before his Honour did not indicate that, as a result of his health issues, the appellant was likely to die before completion of his sentence.
Since on or about 12 November 2001, when he committed the last offence against C, the appellant had not been convicted of any other offences.
Personal deterrence was not a factor which required any weight in that the offences in question were not representative of a course of conduct and there was no material risk of the appellant reoffending.
The sentencing judge remarked that the appellant had shown 'little insight' into his offending behaviour (ts 24). This conclusion is, however, at odds with evidence before his Honour to the effect that the appellant was perplexed (if not bewildered) by his behaviour, his Honour's acceptance that the appellant's expression of remorse and shame was genuine, and the appellant's fast‑track pleas of guilty.
His Honour said that the age disparity between the appellant and C was an aggravating feature of the offending (ts 24). I disagree. The culpability of an adult who engages in intra‑familial sexual abuse of a young child does not increase merely by reason of the offender being middle‑aged or elderly. Community abhorrence towards this kind of offending is not a matter that an adult understands only, or understands better, with increasing age or enhanced maturity. It is well understood generally by adults of all ages.
In the present case, an aggravating feature of the appellant's offending was that C was very young when the abuse commenced. She was 5 when counts 1 to 4 were committed.
I am persuaded that, when the seriousness of the appellant's offending is examined in the context of all other relevant sentencing factors, including the maximum available penalties, the matters of mitigation, the appellant's advanced age and health issues, and the comparable cases to which I have referred, the total effective sentence of 6 years' immediate imprisonment infringed the first limb of the totality principle. The total effective sentence was not proportionate to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances and all relevant sentencing principles. Error should be inferred from the sentencing outcome.
Ground 1 has been made out. It is unnecessary separately to rule on grounds 2, 3 and 4.
Grounds 5 and 6
It is convenient to consider grounds 5 and 6 together. These grounds raise, in substance, an allegation that the sentencing judge took into account irrelevant prejudicial information.
I am satisfied that the appellant has not made out the alleged error. The sentencing judge's interaction with defence counsel, during sentencing submissions, about the alleged offending against S and the discontinuance of those charges, must be evaluated in the context of the sentencing hearing as a whole. His Honour did not, in his sentencing remarks, expressly or impliedly refer to the charges brought against the appellant in relation to S. It cannot reasonably be inferred that his Honour did not accept the explanation and submissions by defence counsel in relation to those charges or that, contrary to defence counsel's explanation and submissions, his Honour took the alleged offending against S into account in determining sentence. In these circumstances, a fair‑minded and informed member of the public would not have had a reasonable apprehension that his Honour, in sentencing the appellant, took into account irrelevant prejudicial information.
Grounds 5 and 6 fail.
The outcome of the appeal and the resentencing of the appellant
I would grant leave to appeal on grounds 2, 3 and 4 and refuse leave on grounds 5 and 6. The appeal should be allowed and the sentencing judge's orders as to the accumulation and concurrency of the individual sentences should be set aside. None of the individual terms of imprisonment has been challenged. They should stand.
In my opinion, a total effective sentence of 4 years' immediate imprisonment would satisfy all relevant sentencing objectives, including appropriate punishment, general deterrence and the denunciation of the appellant's offending, and proper recognition of the mitigating factors and the appellant's advanced age and health issues. I would achieve this result by ordering that the sentences for counts 2 and 6 be served cumulatively upon each other, and that the sentences for the other counts be served
concurrently with each other and concurrently with the accumulated sentences for counts 2 and 6.
The parole eligibility order made by his Honour should not be disturbed. The new total effective sentence should be taken to have taken effect on 14 November 2011.
Finally, I would dismiss the appellant's applications for leave to adduce additional evidence in the appeal. The additional evidence does not materially qualify or supplement the evidence before the sentencing judge.
MAZZA JA: I agree with Buss JA.
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