Hughes v The State of Western Australia - [2014] WASCA 78

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HUGHES -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 78

CORAM: McLURE P
PULLIN JA
MAZZA JA

HEARD: 10 FEBRUARY 2014

DELIVERED : 15 APRIL 2014

FILE NO/S: CACR 116 of 2013

BETWEEN: RALPH ROBERT HUGHES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BIRMINGHAM DCJ
File No  :IND 87 of 2012

Catchwords:

Criminal law - Sentencing - Totality - Advanced age and ill health - Turns on own facts

Legislation:

Criminal Code (WA), s 181(1) (repealed), s 183 (repealed), s 315 (repealed)

Result:

Appeal allowed
Orders made by sentencing judge set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr D Ryan
Respondent: Ms A J Burrows

Solicitors:

Appellant: Chelmsford Legal
Respondent: Director of Public Prosecutions (WA)

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

Bropho v The State of Western Australia [No 2] [2009] WASCA 94
FGC v The State of Western Australia [2008] WASCA 47
GGM v The State of Western Australia [No 2] [2011] WASCA 259
Gulyas v The State of Western Australia [2007] WASCA 263
HFM v The State of Western Australia [2012] WASCA 217
Roffey v The State of Western Australia [2007] WASCA 246
Sell v The Queen (1995) 15 WAR 240
Stubley v The State of Western Australia [2010] WASCA 36
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v Johnson [2009] WASCA 224
The State of Western Australia v Prince [2011] WASCA 22

McLURE P: I would allow this appeal and reduce the appellant's total effective sentence from 8 years to 5 years' immediate imprisonment. The facts of the offending are detailed by Pullin JA. In summary, in January 2013 the appellant was convicted after trial of six counts of sexual offending against three complainants, TP, PW and MT. All of the offences were committed between September 1980 and December 1982 when the appellant was aged between 41 and 44 and the complainants were aged between 13 and 14. The appellant claims that the total sentence infringes both limbs of the totality principle. As to which, see Roffey v The State of Western Australia [2007] WASCA 246.
The appellant was convicted under provisions of the Criminal Code (WA) which have since been repealed. The maximum penalty for the offences committed by the appellant are significantly less than the maximum penalties for the same conduct under the current provisions of the Code.
The appellant was convicted of four counts of unlawfully and indecently assaulting a male for which the maximum penalty is 3 years' imprisonment, one count of having carnal knowledge against the order of nature, the maximum penalty for which is 14 years' imprisonment and unlawful and indecent dealing with a child under the age of 14, the maximum penalty for which is 7 years.
Most of the conduct giving rise to the counts of unlawful and indecent assault of a male and the carnal knowledge offence would, since 1992, be classified as sexual penetration which currently attracts a maximum penalty of 20 years' imprisonment where a child over 13 years and under the age of 16 years is under the care, supervision authority of the offender. Thus, when considering sentences customarily imposed, it is wrong to make direct comparisons with sentences imposed for conduct which subsequently attracted an increased maximum penalty.
In this case, the significance of the very lengthy gap between the commission of the offences and the appellant's conviction, some 30 years, is that it contributed to a finding that the appellant was at a low risk of reoffending. The appellant's age and ill health also informed that assessment.
It is the combination of the appellant's age, ill health and the absence of any requirement for personal deterrence that has led me to conclude that the total effective sentence breaches the totality principle.
The appellant was aged 73 when he was sentenced on 14 May 2013. He has a medical history that includes Parkinson's disease, coeliac disease, prostate cancer, depression and osteoarthritis. At sentencing there was unchallenged medical evidence from the appellant's general practitioner that there had been a significant deterioration of his Parkinson's disease in the six months before April 2013, with more prominent tremors and difficulty walking.
There were two psychiatric reports before the sentencing judge, the first dated 28 August 2012 concerning the appellant's fitness to plead and the second dated 2 April 2013, following his conviction. In his 2012 report the psychiatrist, Mr Skerritt, concluded that the appellant was fit to plead. For the purpose of assessing fitness to plead he conducted a test for dementia, the mini mental state examination, in which the appellant scored 23 which is the cut off point for cognitive impairment. In his 2013 report Mr Skerritt assessed the appellant as being 'a very sick man with cancer of the prostate, Parkinson's disease, dementia and depression'. Mr Skerritt repeated the mini mental state examination which showed there had been a significant deterioration in scores from 23 to 15. He also noted that Parkinson's disease in its late stages has a frequent association with dementia.
Thus the appellant has (at least) two significant degenerative conditions, Parkinson's disease and dementia. His capacity to respond to medical treatment for his Parkinson's disease will reduce with time. The sentencing judge accepted that the appellant's ill health was such as to reduce his life expectancy.
The appellant's age in combination with his degenerative mental and physical condition will make imprisonment more arduous for him and, if he survives, significantly reduce his quality of life after release. Those combination of circumstances are mitigatory in the sense of decreasing the extent to which the appellant should be punished.
The appellant does not press for a different type of sentence. Having regard to the serious nature of the offending, its deleterious effect on the lives of the victims and the need for general deterrence, a sentence of immediate imprisonment is appropriate. He contends that the length of the term is too long and is crushing.
A survey of the most relevant comparable cases show that a total effective sentence of 8 years' immediate imprisonment and less have been imposed in cases where the offending as a whole is more serious with greater maximum penalties and less mitigating factors. See for example Bropho v The State of Western Australia [No 2] [2009] WASCA 94 (five counts of unlawful carnal knowledge of a child under the age of 13 with a maximum penalty of 20 years' imprisonment, a relationship of trust and authority, elderly offender (78) with health problems but no evidence relating to life expectancy, a plea of not guilty, a total sentence of 6 years' imprisonment); GGM v The State of Western Australia [No 2] [2011] WASCA 259 (five counts of sexual penetration of a child under 13, maximum penalty 20 years, a plea of not guilty, no mitigating factors, total sentence of 7 years); The State of Western Australia v Prince [2011] WASCA 22 (17 counts of offences against grand-daughter who was aged between 9 ‑ 11, nine offences of sexual penetration of a lineal relative having a maximum penalty of 20 years' imprisonment, no significant delay between offending and conviction, a plea of not guilty, no significant mitigating factors, a sentence of 8 years' imprisonment); FGC v The State of Western Australia [2008] WASCA 47 (five counts of offending against grand‑daughter between the ages of 5 to 9, including two counts of aggravated sexual penetration without consent, a delay of around 13 years between last offence and conviction, the offender aged around 77 at the time of sentence with no material health problems, a not guilty plea, 6 years' imprisonment).
Having regard to all relevant sentencing factors, including in particular the appellant's advanced age and ill health, I am satisfied that the total effective sentence of 8 years is significantly more than is fairly necessary to achieve all of the recognised sentencing objectives including punishment, retribution and deterrence. Moreover, the consequence of the combination of the appellant's advanced age and degenerative health problems is that the sentence of 8 years will destroy any reasonable expectation of a useful life after release and thus is crushing.
In all the circumstances the total sentence infringes both limbs of the totality principle and is unjust and unreasonable. Accordingly, this court can intervene and resentence the appellant. This is an appropriate case for a merciful disposition. I would reduce the sentence from 8 years to 5 years' imprisonment. There being no challenge to the individual sentences, I would achieve that outcome by ordering that the sentences on counts 3, 4 and 6 be served cumulatively.
For these reasons, I would allow the appeal, set aside the orders made by the sentencing judge for concurrence and cumulation and in lieu thereof order that the sentences on counts 3, 4 and 6 be served cumulatively with the balance of the sentences to be served concurrently.

The total effective sentence being 5 years' imprisonment, the appellant will be eligible for release on parole after serving 3 years.

PULLIN JA: This is an appeal against sentence. The appellant was convicted after trial in the District Court of Western Australia on four counts of unlawfully and indecently assaulting a male (two against each of TP and PW), contrary to s 315 (repealed) of the Criminal Code (WA), one count of having carnal knowledge against the order of nature (against TP) contrary to s 181(1) (repealed) of the Criminal Code, and one count of indecently dealing with a child (MT) under the age of 14 years contrary to s 183 (repealed) of the Criminal Code. The offences were committed more than 30 years ago in the period 1980 to 1982.
On 14 May 2013, the appellant was sentenced by Birmingham DCJ to:
(a)15 months' imprisonment on count 1 (unlawful and indecent assault on TP);
(b)4 years 6 months' imprisonment on count 2 (carnal knowledge against the order of nature on TP);
(c)1 year 6 months' imprisonment on count 3 (unlawful and indecent assault on TP);
(d)2 years' imprisonment on count 4 (unlawful and indecent assault on PW);
(e)2 years' imprisonment on count 5 (unlawful and indecent assault on PW); and
(f)2 years 6 months' imprisonment on count 6 (indecently dealing with a child, MT, who was under the age of 14 years).
Having regard to the first limb of the totality principle, the sentencing judge considered that the total criminality of the offending warranted a total effective sentence of 10 years' imprisonment. This was reduced to 8 years' imprisonment on account of the second limb of the totality principle. In order to achieve this, the sentencing judge ordered counts 2, 4 and 6 to be served cumulatively with the balance to be served concurrently; and the sentence on count 6 was reduced from 2 years 6 months' imprisonment to 1 year 6 months' imprisonment. The total sentence was therefore 8 years' imprisonment and the appellant was made eligible for parole.

Grounds of appeal

The appellant relies on two grounds of appeal. They allege a breach of the first and second limbs of the totality principle, as to which see Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25].
The facts found by the sentencing judge were as follows. The offences occurred between September 1980 and December 1982. At the time, the appellant operated a handyman business, window cleaning and gardening in the Nedlands, Dalkeith and Swanbourne areas. The appellant advertised in a local newspaper for young boys to assist him in his work.
Counts 1 to 3 relate to the appellant's conduct towards TP. TP started working for the appellant prior to his 14th birthday and finished working for the appellant around 15 to 16 years of age. On one occasion, the appellant touched TP's penis (count 1). On another occasion, the appellant penetrated TP's anus with his penis (count 2). Count 3 pertained to TP performing fellatio on the appellant.
Counts 4 and 5 relate to the appellant's conduct towards PW. PW was approximately 14 years old when he started working for the appellant and was employed on weekends for about six weeks. On PW's last day of employment, the appellant encouraged PW to suck his penis, which he did, and the appellant ejaculated in PW's mouth (count 4). PW then went to the bathroom and as he was washing, the appellant penetrated his anus digitally (count 5). The appellant then indicated that he wished to have anal sex with PW, which PW declined. PW ceased working for the appellant at that time (ts 266).
Count 6 related to the appellant's conduct towards MT. MT was not employed by the appellant. The appellant's neighbour's son was a Year 8 student and had invited friends from school to a party at his house. MT, a Year 8 student at the time, attended the party. A number of students went to the appellant's house during the party to consume alcohol (the alcohol was not supplied by the appellant). MT became heavily intoxicated to the point of sickness and fell asleep in the appellant's bed. MT described how he awoke to the appellant sucking his penis (count 6) (ts 266).
In sentencing the appellant, the sentencing judge took into account the nature of the conduct in question and the degree of perversion and deviance demonstrated; and the relevant ages of the offender and the victims at the time the offences were committed (he found the appellant was 43 and 44 years of age and the victims were 13 and 14 years of age). The sentencing judge also took into account that the appellant was in a position of trust and authority in respect of the victims as their employer; that the appellant coerced cooperation from the victims through fear of shame and disclosure of photographs he had taken of the victims; that the offences were repeated over a period of time; that there was little by way of remorse; the impact on the victims, as evidenced by the victim impact statements; the appellant's criminal history; and that there were multiple victims. The sentencing judge found these factors to demonstrate that the appellant's offending was at the 'upper level'.
In considering the appellant's health, the sentencing judge referred to a report from Professor Skerritt stating that the appellant was a 'very sick man with cancer of the prostate, Parkinson's disease, dementia and depression' (ts 273). It appears that the appellant also suffers from coeliac disease and osteoarthritis. On the other hand, despite those diseases, the sentencing judge noted that the appellant was assessed by the principal medical practitioner at Hakea Prison on 9 May 2013 to be able, unaided, to perform all of the activities of daily living as defined in the ACAT assessment and therefore did not require any assistance (ts 273). The sentencing judge found that it was 'apparent' that 'there is no impediment from [the appellant's] health to serving a term of imprisonment' (ts 274). Other observations by Professor Skerritt referred to by the sentencing judge, and referred to by me below, diminish the impact of the quoted comment about the effect of his illnesses.

Ground 1

The appellant submitted that the total sentence of 8 years' imprisonment does not bear a proper relationship with the overall criminality involved in all of the offences, particularly when taking into account the age and ill health of the appellant. The main point of the appellant's submissions comes down to the following factors. The offences were committed over 30 years ago; there is no evidence before the court of any offending after these offences were committed; the appellant is elderly and his health is poor and that in view of those facts, there was no requirement that the sentence had to be such as would provide personal deterrence and protection for the public. The absence of the need for personal deterrence and the lack of any need for protection for the public meant that the sentence would have to be less than a sentence where personal deterrence and protection of the public were important considerations.
The appellant submitted that cases to which reference was made suggested the total sentence was excessive. The cases relied on were: GGM v The State of Western Australia [No 2] [2011] WASCA 259; The State of Western Australia v FJG [2012] WASCA 206; The State of Western Australia v Prince [2011] WASCA 22; and Bropho v The State of Western Australia [No 2] [2009] WASCA 94.
In GGM, the appellant showed no remorse, there were multiple victims and he was in a position of trust. The appellant received a total sentence of 7 years' imprisonment.
In FJG, the appellant was convicted of 14 offences of a sexual nature against his two natural daughters. The appellant was 69 years of age at the time of sentencing, however, he was in reasonable health. The appellant had also entered a partial guilty plea. The sentence was 10 years 6 months' imprisonment.
In Prince, the respondent was convicted of 17 counts of sexual offences against his granddaughter. The victim was between the ages of 9 and 11. The grandfather was obviously in a position of trust and there was no admission of guilt and therefore little remorse. The total effective sentence was 8 years' imprisonment.
In Bropho, the respondent was convicted of 5 counts of unlawful carnal knowledge of a child under the age of 13 years. Again, the respondent was in a position of trust. The complainant was 11 years of age on the first occasion the respondent had sexual intercourse with her and, at the time of sentencing, the respondent was 78 years of age. The respondent did not demonstrate any remorse. The respondent suffered numerous health issues, including diabetes, chronic renal failure, heart disease, an underactive thyroid and depression. The sentence was 6 years' imprisonment.
The respondent submits that a comparison with those cases tends to confirm rather than undermine the proposition that the sentence of 8 years' imprisonment was a just and appropriate sentence.

Disposition

The appellant committed a series of six offences against three individual complainants over a lengthy period of time. In the case of the first two complainants, the offences were representative of what had happened over a period of time. The appellant had selected his victims with some care, groomed them and then used coercion and blackmail in relation to some of the offending. The appellant displayed no remorse. The offences had a devastating effect on the lives of two of his victims. The appellant was not, at 73 years of age, as old as other offenders who have been sentenced to lengthy prison terms: see Stubley v The State of Western Australia [2010] WASCA 36 (80 years old and sentenced to 6 years' imprisonment for sex offences when he suffered from early dementia and heart problems); Gulyas v The State of Western Australia [2007] WASCA 263 (almost 79 years old and sentenced to 9 years' imprisonment for drug offences).
In this case, the appellant's health issues were stable and were properly considered and taken into account by the sentencing judge who reduced the sentence which would otherwise have been appropriate.
If there is a long period of time between commission of offences and sentencing and where real remorse is shown, then this may result in a reduction in the sentence which would otherwise have been imposed: Sell v The Queen (1995) 15 WAR 240, 260 and 261 (Malcolm CJ, Kennedy J and Ipp J agreeing); HFM v The State of Western Australia [2012] WASCA 217 [60] (Buss JA, McLure P and Mazza JA agreeing). The sentencing judge observed that there had been 'no ready expression of remorse', evidenced by the accusation of lying put by counsel for the appellant against one of the complainants. The appellant claimed not to remember the details of the charges, but Professor Skerritt was sceptical about that claim. Professor Skerritt pointed out that the appellant was able to give details of his life history, but that his 'relatively circumscribed gap in his memory for the offences was unusual'. This led Professor Skerritt to say that it would be 'difficult to attribute a rather circumscribed gap in memory for a period of alleged offences to dementia'. Although Professor Skerritt said that the appellant presented as a frail man, the Parkinson's disease was 'fairly well controlled'. None of those matters suggest that the sentencing judge erred in fixing the sentence that he did. The need for general deterrence and punishment for the crimes remain important sentencing considerations. There is nothing in the range of sentences suggested by the cases referred to by the appellant which supports any inference that the total sentence imposed was excessive. Judges, at first instance, should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected: The State of Western Australia v Johnson [2009] WASCA 224, [14] ‑ [15] (Owen JA). The sentencing judge took into account all relevant factors and arrived at a total sentence which, while on the high side, was not so high as would

allow a conclusion to be reached that there was inferred error. Ground 1 should be dismissed.

Ground 2

As to ground 2 and the second limb of the totality principle, it is not possible to say that the total sentence imposed would destroy any reasonable expectation of a useful life after release. There is no evidence about the prognosis of his illnesses. He is suffering from prostate cancer, and the suggestion within the material before the court was that it is a low risk tumour. He has Parkinson's disease, but it is 'well controlled' and his prognosis was not revealed. He is suffering from dementia but his supervisors in prison report that he showers and toilets without assistance; dresses neatly; eats a full diet; moves about the prison with a stable gait and socialises normally. He reads books from the library and seeks to have work assignments. There was an assessment made shortly before he was sentenced.
The result is that there was no error in relation to the second limb of the totality principle. Ground 2 should be dismissed.
The appeal should be dismissed.
MAZZA JA: I agree with McLure P.