Holden v The State of Western Australia - [2008] WASCA 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HOLDEN -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 50

CORAM: WHEELER JA
BUSS JA
MILLER JA

HEARD: 22 FEBRUARY 2008

DELIVERED : 4 MARCH 2008

FILE NO/S: CACR 129 of 2006

BETWEEN: DAVID MUILTON HOLDEN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 1336 of 2005

Catchwords:

Criminal law - Sentencing - Five counts of sexual offences - Three counts of indecent dealing - Two counts of sexual penetration - Convictions after trial - Aggregate sentence of 7 years 8 months with eligibility for parole - Whether sentence infringed totality principle

Legislation:

Criminal Code, s 320(2), s 320(4), s 321(2), s 321(7)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Ms B J Lonsdale
Respondent: Ms L Petrusa

Solicitors:

Appellant: Tottle Partners
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bosworth v The Queen [2004] WASCA 43
H v The State of Western Australia [2006] WASCA 53
HAS v The State of Western Australia [2005] WASCA 29
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341

WHEELER JA: I agree with Miller JA.
BUSS JA: I agree with Miller JA.
MILLER JA: The appellant was indicted in the District Court on nine counts alleging sexual offences. Each count alleged an offence against the one complainant. The period covered by the offences was 3 September 1993 to 31 May 1996.
The appellant was convicted of five counts on the indictment, being three counts of indecent dealing and two of sexual penetration by inserting his penis into the vagina of the complainant. These offences covered the period 3 September 1993 to 31 August 1994. In four cases, the complainant was a child under the age of 13 years and in one, a child between the ages of 13 and 16 years. (She was 13 years of age on 31 August 1994, when count 6 on the indictment was alleged to have occurred.)
The appellant was sentenced on 13 September 2006 to an aggregate term of imprisonment of 7 years 8 months. That sentence was made up in the following way:

Count 1 - Indecent dealing (Criminal Code s 320(4))	12 months
Count 2 - Indecent dealing (Criminal Code s 320(4))	9 months
Count 3 - Indecent dealing (Criminal Code s 320(4))	12 months
Count 5 - Sexual penetration (Criminal Code s 320(2))	2 years 8 months
Count 6 - Sexual penetration (Criminal Code s 321(2), s 321(7)(b))	3 years

The sentence of 9 months imposed on count 2 should have been a sentence of 8 months. There was an arithmetical error.

The sentencing judge ordered that the sentences in relation to counts 2 and 3 should be served concurrently with each other and cumulatively upon the sentence imposed on count 1.
The sentences on counts 5 and 6 were ordered to be served cumulatively with each other and to be served cumulatively upon the sentences imposed with respect to counts 1, 2 and 3. This led to the

aggregate sentence of 7 years 8 months. An order was made for eligibility for parole and the sentences were backdated to 3 August 2006.

Appeal

The appellant was granted leave to appeal on 2 March 2007. There is only one ground of appeal and it is that the total effective sentence infringed the totality principle. That ground, with particulars, is in the following terms:
1.The total effective sentence imposed infringed the totality principle of sentencing and as a result was manifest [sic] excessive in all of the circumstances of the case
Particulars
a.None of the individual sentences imposed on each of the counts on which the applicant was convicted were in themselves excessive.
b.By ordering counts 5 and 6 to be served cumulatively upon each other and cumulatively on counts 1 , 2 and 3, the learned Sentencing Judge gave inadequate weight to the totality principle which resulted in a sentence which was manifestly excessive.
c.Whilst the circumstances relating to the counts ordered to be served cumulatively would prima face have justified cumulative sentences, the totality principle required that some of those sentences be ordered to be served concurrently or partially concurrent with each other so as to achieve a sentence that was proportionate to the criminality of the offending.

The facts

The facts recounted by the sentencing judge were not in dispute at the hearing of the appeal. They reveal that the five offences of which the appellant was convicted occurred in four separate incidents over a period of approximately 12 months between September 1993 and August 1994.
The complainant was born 31 August 1981 and was aged between 12 and 13 years when the offences occurred. The appellant was aged between 47 and 48 years over the period.
The appellant met the complainant when her parents sold a semi‑rural property to him in September 1992. It was the appellant's plan to develop this property into a horse‑riding academy. He had a daughter who was about one year younger than the complainant. She resided with the appellant. Both the appellant and his daughter were very interested in horse‑riding and equestrian matters.
By reason of the appellant's friendship with the complainant's parents, an arrangement was reached whereby the complainant would take horse‑riding lessons with the appellant. She spent a considerable amount of time at the appellant's property having those lessons. With increased proficiency in equestrian riding, she began to enter competitions and go to weekend events. It was easier for her to travel to these if she stayed overnight at the appellant's home on those weekends. This, she did, generally sleeping in a bedroom near that of the appellant, although sometimes in a bedroom at the rear of the house.
The complainant was not the only girl who came to the property for riding lessons. Nor was she the only girl who stayed overnight. However, in 1993, when the complainant was in year 7 and was approximately 12 years of age, an incident occurred whilst the complainant was in a rear bedroom at the house. She had turned off the light and got into bed. She heard the appellant coming down the hallway. He entered her room, closed the door and sat on her bed. He pulled the covers down to her ankles and lifted her nightie over her stomach. He then caressed her vagina over her underwear with his fingers. He went further. He placed his hand underneath her knickers and began to caress her vagina underneath. He asked the complainant if it felt good. She said that it did. He then left the room. This incident was the basis of count 1 on the indictment.
The facts giving rise to count 2 on the indictment occurred when the complainant was again staying at the appellant's home over a weekend. It was on a Saturday evening that the incident occurred. The appellant requested the complainant to accompany him to stables at the rear of the house after dinner. Once in the stables, the appellant hugged and kissed the complainant. He then stroked her on the vagina. She was wearing jodhpurs and he had his hand outside her vagina.
Count 3 on the indictment involved a separate act which occurred at or about the same time. The appellant exposed his penis and then undid the complainant's jodhpurs and put his hand on her vagina from inside the jodhpurs. The events in the stables lasted for about 10 to 15 minutes, at the conclusion of which the appellant suggested that they should return to the house.
Count 5 on the indictment related to an incident which occurred at the appellant's home in 1993, when the complainant was 12 years of age. The complainant was naked in bed with the appellant. He was naked and was on top of her. He first touched her on the vagina and then moved the head of his penis in and out of her vagina two or three times before inserting his penis completely into her vagina. The complainant was in pain. She experienced a burning sensation. The appellant ejaculated inside the complainant's vagina. This upset her. He said that she need have no concern about becoming pregnant because he had had a vasectomy.
Count 6 on the indictment related to an incident which occurred at or about the time the complainant turned 13 years of age. On an evening when she was at the appellant's home, she was seated on her bed when the appellant entered the room. He asked her to come into his room, but she declined. He returned a short time later and insisted that she come into his room. The complainant was under the bedclothes at the time, but she could not recall whether she was dressed or not. There was dim lighting in the room and she could see the appellant, whose penis was visible and partially erect. The appellant got into the complainant's bed, lay on top of her and put his penis into her vagina.
Following the incident the subject of count 6, the complainant no longer stayed at the appellant's house. She went there because her horse was stabled there until 1997 or 1998, but did not sleep overnight. Eventually, the complainant formed a relationship with a young man. She wrote to him advising what had happened between the appellant and herself. This letter found its way into the hands of the complainant's mother. About six months later, she approached police and a complaint was made.
The appellant (who gave evidence at his trial) denied any form of sexual misconduct or wrongdoing towards the complainant and testified that the allegations could not be true because he had a girlfriend at the relevant time with whom he was having a sexual relationship and she was in the house on at least one or two occasions when the offences were alleged to have occurred. The appellant's defence at trial was that the complainant had fabricated her allegations with a view to gaining financial advantage by way of compensation, or alternatively to avoid repaying a loan of $7,500 which the appellant had made to her.

Sentencing judge's comments

The sentencing judge recounted the facts as I have detailed them. She then turned to matters personal to the appellant. She had a pre‑sentence report and a psychological report. She had also received full submissions made on behalf of the appellant.
The submissions and pre‑sentence report revealed that the appellant was born 1 December 1946 and was 59 years of age at the time of sentencing. In the interview which led to the pre‑sentence report, he strongly denied the commission of the offences of which he had been convicted. He claimed that the relationship with the complainant was purely platonic and that he had behaved appropriately at all times. He repeated that the complainant had masterminded a plan to benefit financially from the appellant and his wife.
The sentencing judge noted that the appellant had been married to his current wife for a period of some nine years. She was supportive of him and the appellant claimed that he had a good relationship with his wife. He desired to return with his wife to the Philippines (her country of origin) and to live there on a permanent basis. The appellant had a 34‑year‑old son from a previous marriage and a 24‑year‑old daughter from another relationship.
The appellant was educated to year 10 at high school. He then undertook further study at Perth TAFE and elsewhere over a five‑year period. He was apprenticed as a scientific instrument maker. He was employed in the mining industry as a consultant engineer and contract engineer. His employment required him to travel within this State and to West Africa. He also ran a number of businesses, including a tavern, a fish and chip shop, a post office and a party hire company.
The appellant was diagnosed in July 2001 with bowel and bladder cancer. He underwent surgery and received chemotherapy and radiation infusion. Apparently the cancer has not returned. The sentencing judge concluded that the treatment the appellant had experienced had been deleterious to his memory. His medical condition at the time of sentencing revealed that he had increased blood pressure, but was on medication for the problem.
The sentencing judge noted the contents of the psychological report of Ms D Barbuzza, a psychologist contracted to the Department of Corrective Services. It is dated 6 September 2006, and in it Ms Barbuzza concludes that the appellant's risk of reoffending in a similar manner is considered to be low. He had a one in 20 chance of reoffending in a similar manner over a five‑year period. The risk was considered to be elevated because of his unaddressed treatment needs and it might be considered to increase further in the event that his current relationship ended or if he had unsupervised contact with females similar in age to the complainant. On the other hand, his risk could be considered to be lowered because of the significant time that had elapsed since the offences took place, and because of his relationship with his wife.
Ms Barbuzza thought it would be useful for the appellant to participate in a sex offender programme offered by the Department of Corrective Services, but his stance of denial precluded him at that time from inclusion in such a programme. Information tendered by the appellant's counsel at the hearing of the appeal does indicate that, in April 2007, the appellant was recommended for participation in a medium intensity 'SOTP' (sex offenders' treatment programme) at Bunbury Regional Prison.
The sentencing judge took account of the fact that the appellant was a first offender who had never previously offended in a sexual manner against any person. She also took into account a range of character references which had been tendered on the appellant's behalf.
The sentencing judge concluded that the five offences of which the appellant had been convicted were very serious. They reflected significant sexual misconduct against a young girl and demonstrated a significant breach of trust. There was a significant age difference between the appellant and the complainant at the time of the offending. The gravity of the offending was such that general deterrence required particular emphasis in the sentencing process. Mitigatory factors did not carry as much weight as they might otherwise do.
The sentencing judge was concerned that the appellant persistently denied his responsibility for the offences of which he was convicted. She pointed out that he could not be given the benefit of any mitigation or remorse that acceptance of his offending might otherwise attract.
The sentencing judge concluded by stating that the complainant had been vulnerable at the time of the commission of the offences. The offending, particularly the acts of penile penetration of a young complainant, was particularly serious. The fact that there was ejaculation on the first occasion was of distress to the complainant.
The sentencing judge concluded that there had been a degree of grooming on the appellant's part. The evidence revealed that the conduct began by inappropriate sexual touching and progressed to full penile vaginal penetration.
The sentencing judge noted that the complainant, with the benefit of hindsight, realised how wrong and inappropriate the relationship had been. She considered that it had affected her self‑esteem and ability to trust people (particularly males) and to engage in a normal sexual relationship with her current partner.
There had been a significant degree of rehabilitation of the appellant since the offending occurred (in the sense that he had not reoffended), and specific deterrence was not thought to be of paramount importance. General deterrence was, however, something which the sentencing judge thought must be stressed. Her Honour said:
The community has a strong interest in ensuring that the physical and emotional welfare of children and young persons is protected. You violated the complainant's physical and sexual privacy in a very significant and somewhat persistent manner, it would seem, over the course of these five offences for your own sexual gratification. You were well aware of the very significant age difference that existed between you and the complainant and also of the fact that you were in a position of trust vis‑a‑vis her. (ts 955)
In sentencing the appellant, the sentencing judge took account of the totality principle and imposed an aggregate sentence of 7 years 8 months' imprisonment.

Ground of appeal

The single ground of appeal contends that the total effective sentence infringed the totality principle. No issue was taken with any of the individual sentences imposed. What the appellant complains about is that the sentences on count 5 and 6 were ordered to be served cumulatively upon each other and cumulatively on counts 1, 2 and 3. The contention of the appellant is that, whilst the circumstances of the offences justified accumulation of sentences, the totality principle required that some sentences be ordered to be served concurrently or partially concurrently with each other so as to achieve a sentence that was proportionate to the criminality of the offending.
As I have already pointed out, counts 2 and 3 were ordered to be served concurrently, so that the aggregate sentence was actually one in which the sentences on counts 5 and 6 were to be served cumulatively on each other and on the sentences on counts 1 and 3, which were also cumulative. The question then is whether by so ordering that accumulation, the sentencing judge was in error.
There is no doubt that, in the present case, the sentencing judge understood the need to structure the aggregate sentence in accordance with the totality principle. That principle is well known and has been stated in many cases in recent years. Perhaps its most authoritative formulation is in Mill v The Queen (1988) 166 CLR 59 at 62 ‑ 63 where the High Court approved the description of the totality principle contained in Thomas: 'Principles of Sentencing' (2nd ed, 1979) at pages 56 ‑ 57:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
In this court, Ipp J in Jarvis v The Queen (1993) 20 WAR 201 stressed the need when applying the principles to take a 'last look' at the total imprisonment imposed. His Honour said at 206 ‑ 207:
[I]n taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: Wicks v R (1989) 3 WAR 372 at 379 to 380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos at 301 by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R (No 2) (1988) 164 CLR 465; Evangelista and Laporte v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.

Senior counsel for the appellant sought to compare the case with a number of other cases. A table was tendered to the court which referred to some 18 cases. It is unnecessary to refer to all the cases upon which senior counsel for the appellant relied. The essential submission which he made was that the aggregate sentence imposed by the sentencing judge fell outside the range of sentences which was appropriate to the case.
'Micro analysis' of other cases of sexual offences by adults against young girls is of limited value in considering whether the aggregate sentence imposed by the sentencing judge in this case offended the totality principle. In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [42], I made this point in the context of a drug case, when I said:
The cases referred to by counsel for the applicant and Stapleton v The Queen do no more than confirm the cautionary observation of Kennedy J in Allen v The Queen that although examples of cases provide some guidance on appropriate sentences, their facts vary widely and they must be applied with considerable care.
Similar observations have been made by other judges in a number of cases.
Reference to two of the cases referred to by counsel for the appellant will illustrate the point. The first of those cases is Bosworth v The Queen [2004] WASCA 43. In this case, the applicant pleaded guilty to seven counts of indecently dealing with a child under the age of 14 years and three counts of carnal knowledge of a girl he knew to be his daughter. An aggregate sentence of 12 years' imprisonment was imposed upon the applicant. Malcolm CJ (with whom Scott and McKechnie JJ agreed) concluded that such a sentence was not manifestly excessive in the circumstances. The sentence of 12 years' imprisonment was 'pre‑transitional' and, by reasons of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), it represented a sentence of 8 years' imprisonment today.
An immediate point of distinction is the fact that the applicant pleaded guilty to all counts. Malcolm CJ referred to the facts of the case and to a number of other cases. After pointing out [36] that mitigatory factors in cases of this nature are given much less weight than in other cases, Malcolm CJ said at [37]:
Cases involving sexual assaults on young children within the family have attracted heavy sentences of 8 years or more in total. Such cases are often, but not always, cases where more than one child has been victimised; or where there has been multiple offending over an extended period and the offending has included sexual penetration; or where some degree of violence, cruelty, aggression or threats have been employed: Woods v The Queen (supra) at 354 per Anderson J. After reviewing a number of cases of sexual assaults on young children which the Court had imposed sentences of 8 years or more, Anderson J said at 357:
'There are many other cases in which sentences of between 8 and 12 years have been imposed.'
Malcolm CJ added at [38] that, in a number of cases, longer sentences had been imposed than sentences within the range indicated by Anderson J in Woods v The Queen (1994) 14 WAR 341.
Since Woods v The Queen, the Court of Appeal has decided VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1. The court (Wheeler and Roberts‑Smith JJA and Miller AJA) made it clear that sentences for multiple counts of sexual offending against a child had significantly firmed up since Anderson J's survey in Wood v The Queen. At [307] the court said:
Cases such as Podirsky, Jarvis, Petchell, and Shepherdson, can no longer be regarded as reliable guides. Offending of the type described in them is now regarded significantly more seriously. It should also be noted, in this context, that in a number of the more recent cases reviewed, older examples such as Jarvis and Podirsky were apparently seen as setting roughly an 'upper limit'. Bishop v The Queen [2002] WASCA 79 (16 years, pre-transitional provisions) and Morley v The Queen [2001] WASCA 49 (13 years, pre-transitional provisions) are examples of such cases.
The conclusion reached as to the appropriate range of sentences in cases of this nature (as at 2005) is set out at [309] in the following terms:
Finally, in relation to offences of this kind (that is, cases of frequent or prolonged sexual offending against a child or children), it is convenient to undertake the exercise of converting the sentences which we have discussed into those which would be imposed after the transitional provisions came into operation on 31 August 2003. The "lower end" cases of up to 4 years formerly, would now be up to 2 years and 8 months; the most common sentence one would expect to see would be approximately 6 years and 8 months, and about two-thirds of sentences in such cases would fall within the range 6 years 8 months to 12 years 8 months (the former 10 to 19-year range).
Further, the court noted that, in recent times, a better understanding has been gained of the long‑term effects of offending on children. At [291], the court said:
In the light of those experiences, courts now understand much more clearly the destructive effect of all such offending (whether accompanied by overt violence or not) upon a child's capacity to trust others and to form relationships, and upon the child's sense of self-worth. Particularly in cases of frequent or prolonged abuse, an inability to form adult relationships, or an inability to maintain them, exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common. Also frequently encountered in such cases are drug or alcohol abuse, self-harm, and attempted suicide.
In the present case, the victim impact statement of the complainant confirms these conclusions. An extract from it is as follows:
My level of trust in people, particularly men has been quite low since the abuse. My feeling was if I couldn't trust and rely on a close family friend to do the right thing by me, who can I really trust. Sometimes that lack of trust can put a strain on my relationships with the people close to me. I know that it hurts the people close to me when I don't trust them as much as I should, and second guess what they do or say when really they are being honest with me.
To have an intimate relationship has been very hard for me. My level of trust has been the biggest difficulty, along with knowing what is expected out of an intimate relationship.
...
My level of self esteem has been quite low since the abuse. In the last couple of years I have worked quite a bit on myself through counselling and self help aids (such as books and tapes etc) which has helped quite a bit with my level of self esteem. Also, going to church has really helped how I feel about myself, and I have since developed some good friendships, and I am learning to trust people more now. I still have moments where I feel quite low and depressed though.
HAS v The State of Western Australia [2005] WASCA 29 was another case referred to by counsel for the appellant. Again, it involved pleas of guilty. The applicant had pleaded guilty to three counts of sexual offences upon a child under the age of 16 years who was his de facto child. The first count involved sexual penetration of the vagina with the applicant's penis. The second was indecent dealing by kissing the child's breasts and nipples. The third was another count of sexual penetration with the penis. The facts revealed that the complainant was 13 years of age at the time of the offences and the applicant was 48 years of age. Roberts‑Smith JA (with whom Malcolm CJ and Pullin JA agreed) relied upon Anderson J's survey in Woods v The Queen.
The aggregate sentence imposed upon the applicant was 6 years' imprisonment (a sentence adjusted in accordance with sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003) and the court considered that this sentence was consistent with the range of sentences referred to in Woods v The Queen. However, although the decision in HAS v The State of Western Australia was delivered on 1 March 2005, it predated that of the Court of Appeal in VIM v The State of Western Australia. The decision in VIM was delivered on 2 December 2005. It set a new range and revealed a firming‑up of sentences of sexual offences of the type committed by the appellant in this case.
The schedule of cases referred to by counsel for the appellant did include some cases in which the appellant had pleaded not guilty, but it is to be stressed that the range of sentences which the Court of Appeal referred to in VIM at [309] is a range which applies to cases in which the accused person has pleaded guilty. The appellant in this case is in an entirely different situation. Had he pleaded guilty, there may have been substance to the appeal. The fact remains, however, that he had no entitlement to the discount which would have been applicable for his plea of guilty.
The aggregate sentence imposed upon the appellant was severe. However, in my opinion, it was within the range of sentences which it was open to the sentencing judge to impose. As I have pointed out, the appellant did not plead guilty. Had he done so, he would have been entitled to a discount: H v The State of Western Australia [2006] WASCA 53 [59] (Steytler P) and cases cited therein. This would have reduced each of the sentences imposed upon the appellant and that, in turn, would have led to a lower aggregate sentence.
Further, matters personal to the appellant were of limited mitigatory weight. That principle is well established: VIM v The State of Western Australia [320] ‑ [321].
In all the circumstances of the case, I am unable to accept the contention that the aggregate sentence imposed by the sentencing judge (7 years 8 months' imprisonment) was, in the circumstances of this case, in breach of the totality principle. To the contrary, it seems to me that it fell squarely within the range of sentences considered by the Court of Appeal in VIM v The State of Western Australia to be appropriate to the type of sexual offending committed by the appellant in this case against the complainant.
The offences committed by the appellant occurred over a period of approximately 12 months. At that time, the complainant was aged between 12 and 13 years and the appellant was aged between 47 and 48 years. The offences were a gross breach of trust on his part, as he had been given the responsibility of looking after the complainant in his own home. The offences were aggravated by the fact that two of the counts on the indictment related to penile penetration of the vagina, in one of which there was ejaculation on the part of the appellant. The long‑term effect on a child of such tender age being exposed to this behaviour is something of which the courts now have a greater appreciation (VIM v The State of Western Australia [289] ‑ 292]). The victim impact statement of the complainant makes it clear that she did experience exactly the loss of self‑worth and loss of capacity to trust others that the court referred to in VIM v The State of Western Australia.
For the reasons I have given, I would dismiss this appeal.