Indich v The State of Western Australia
[2019] WASCA 13
•22 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: INDICH -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 13
CORAM: MAZZA JA
MITCHELL JA
ALLANSON J
HEARD: 17 OCTOBER 2018
DELIVERED : 22 JANUARY 2019
FILE NO/S: CACR 237 of 2017
BETWEEN: CLARENCE JAMES INDICH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: EATON DCJ
File Number : IND 1702 of 2016
Catchwords:
Criminal law - Appeal against sentence - Two counts of sexually penetrating a de facto child under the age of 16 years - Alleged implied error - Whether the total effective sentence breached the first limb of the totality principle - Total effective sentence of 7 years 2 months' imprisonment - Alleged express error - Whether there was a finding of remorse - Whether there was a failure to give mitigatory weight to the alleged finding of remorse
Legislation:
Criminal Code (WA), s 329(2), s 329(9)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AJ v The State of Western Australia [2016] WASCA 13
ARK v The State of Western Australia [2014] WASCA 45
Baines v The Queen [2016] NSWCCA 132
CA v The Queen [2000] WASCA 176
Chinnery v The Queen [2000] WASCA 295
CJF v The State of Western Australia [2012] WASCA 69
DKA v The State of Western Australia [2015] WASCA 112
DPP v Walsh (a pseudonym) [2018] VSCA 172
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
GNR v The State of Western Australia [2015] WASCA 5
Haeusler v The Queen (unreported, library number 960387, delivered 19 July 1996)
JAW v The State of Western Australia [2012] WASCA 7
KMB v The State of Western Australia [2010] WASCA 212
Lago v The Queen [2015] NSWCCA 296
Ly v The Queen [2014] FCAFC 175; (2014) 227 FCR 304
MMC v The State of Western Australia [2012] WASCA 187
Rowsell v The State of Western Australia [2015] WASCA 2
SG v The State of Western Australia [2013] WASCA 236
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Prince [2011] WASCA 22
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
MAZZA JA:
This is an appeal against sentence.
The appellant was convicted on his pleas of guilty of two counts of sexually penetrating his de facto child who was at the time under the age of 16 years, contrary to s 329(2) (read with s 329(9)(a)) of the Criminal Code (WA) (Code). The victim in each case was his de facto daughter, A.[1] At the time of each offence, A was 14 years old. Count 1 occurred on a date unknown between 30 September 2014 and 1 January 2015 at a country town in Western Australia, and involved the appellant penetrating the child's vagina with his penis. Count 2 occurred on a different occasion on a date unknown between 31 December 2014 and 1 March 2015 at another location, and involved the appellant penetrating the child's anus with his penis.[2]
[1] ts 23 ‑ 24.
[2] ts 40 ‑ 41.
On 3 November 2017, the appellant was sentenced to 4 years' immediate imprisonment on count 1 and 3 years 2 months' immediate imprisonment on count 2. The sentencing judge ordered that the terms be served cumulatively. Thus, the total effective sentence was 7 years 2 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 19 September 2015 to take into account the 769 days the appellant had spent in custody prior to being sentenced.[3]
[3] ts 45.
The appellant relies on two grounds of appeal. Ground 1 alleges that the total effective sentence infringed the first limb of the totality principle. Ground 2 alleges, in substance, that the sentencing judge found that the appellant was remorseful but failed to give this factor any mitigatory weight. The question of leave to appeal on these grounds was referred to the hearing of the appeal.[4]
[4] AB 4, 6.
The facts
The appellant did not challenge the facts of his offending as they were described to the sentencing judge.[5]
[5] ts 25.
The appellant was married to A's mother, and was, accordingly, her stepfather. At the time of the offences, A was 14 years old and the appellant was 31.[6]
[6] ts 24, 40.
In respect of count one, in about November or December 2014, A was residing with her mother and the appellant, along with other family members, in a house situated in a country town in Western Australia. One night at about 9.00 pm, A went into her parents' bedroom where the appellant was watching television. The appellant asked, 'What do you want?', to which A replied, 'You know what I want'. It was accepted that A had given the appellant the idea that she would be agreeable to having sex with the appellant.[7]
[7] ts 24, 40.
A short time later, the appellant went into A's bedroom and suggested that they have sex. A followed the appellant into his bedroom. There, the appellant penetrated A's vagina with his penis. This was the first time that A had engaged in sexual intercourse. While they were having sexual intercourse, the condom that the appellant was wearing broke, after which he told A to have a shower. The appellant threw the condom in a rubbish bag, and then watched a movie with A.[8]
[8] ts 24 - 25, 40 ‑ 41.
In respect of count 2, in or about January or February 2015, A and other family members, including the appellant, were living in another country town in Western Australia. On an unknown date, the appellant and A were in the living room on the couch. The appellant inserted his penis into A's anus and had anal sex with her for a period of time.[9]
[9] ts 25, 41.
The State expressly acknowledged that the two offences were not representative of ongoing sexual conduct by the appellant towards A.[10]
[10] ts 25, 41.
A's victim impact statement contains some factual assertions which were not pursued by the State at sentencing. Even so, it is clear that the offences have seriously and adversely affected A and will continue to do so in the foreseeable future.
The appellant's personal circumstances
The sentencing judge was provided with psychological and pre‑sentence reports.[11]
[11] ts 41.
The appellant is an indigenous Australian. He was raised by a maternal great aunt, who he referred to as his mother. He had virtually no contact with his father while he was growing up, and only minimal contact with his natural mother. He left his great aunt's care when he was about 16 years old to stay with his birth mother, where he was exposed to illicit drug use.[12]
[12] Psychological report, pages 2 ‑ 3.
The appellant left school half way through year 11. It appears that, while at school, he experienced learning difficulties and had been placed in remedial classes.[13]
[13] Psychological report, page 3.
After leaving school, he accompanied his father to Canberra, where the appellant worked as a panel beater for a short period. Thereafter, he was employed in various labouring positions.[14]
[14] Psychological report, page 3.
Although the appellant had not been a completely consistent historian so far as his drug and alcohol use was concerned, it was clear that he had a history of alcohol abuse and that he had used methylamphetamine and cannabis. It appears he was using methylamphetamine at the time of his offending.[15]
[15] Psychological report, pages 5 - 6.
A mini mental status examination revealed that the appellant scored within the mild cognitive impairment category. The author of the psychological report noted that the appellant may have undiagnosed dyscalculia (a difficulty in learning, understanding or manipulating numbers). The appellant denied ever having been diagnosed or treated for a psychotic disorder. However, he recalled that he experienced a 'big breakdown' prior to his arrest, he reported suicidal ideation and, at the time he was sentenced, he was taking anti‑depressant medication.[16]
[16] Psychological report, pages 5 - 6.
There was no evidence in either report that indicated the appellant had a sexual deviant interest in children. The author of the psychological report hypothesised that the sexual offences against A were, in part, 'motivated by revenge, fuelled by resentment and anger in relation to his relationship difficulties and his perception of his partner's infidelity and disregard of him'.[17]
[17] Psychological report, page 7.
Although the appellant has not been convicted in the past of any sexual offence, he has been convicted on three occasions of assault occasioning bodily harm, as well as breaching a violence restraining order (twice), unlawful damage (twice), breach of bail, common assault, carrying an article with intent to cause fear, and possession of drug paraphernalia.[18]
[18] ts 43; AB 59 ‑ 60.
The sentencing remarks
After outlining the facts, the sentencing judge referred to A's victim impact statement. His Honour described that document as 'outlin[ing] in fairly graphic terms the impact of [the appellant's] offending upon her'.[19]
[19] ts 41.
As to count 1, his Honour remarked that as a consequence of the condom breaking, A was exposed to the risk of pregnancy.[20]
[20] ts 42.
Each offence, his Honour said, was 'very serious',[21] involving, as they did, 'the sexual invasion of a 14‑year‑old girl by a man who was not only an adult and should have known better, but was her stepfather and was in the position of being required to care for her and make sure that her welfare was properly attended to'.[22]
[21] ts 42.
[22] ts 42.
His Honour went on to say:[23]
[The appellant] abrogated those responsibilities in pursuit of [his] own sexual desires and sexual gratification. That is something as I say that brings [the appellant] absolutely no credit whatsoever. I appreciate now that [the appellant] may be regretful for what happened and remorseful for those events. (emphasis added)
It is the italicised part of this quote which the appellant says constitutes the finding of remorse upon which ground 2 relies.
[23] ts 42.
His Honour remarked about the length of time the appellant had spent on remand, and noted that the appellant had put this time 'to good use', learning how to make clothing, a skill the appellant hoped he could use in the community after his release.[24]
[24] ts 43.
Pursuant to s 9AA of the Sentencing Act 1995 (WA), his Honour gave a discount of 20% for the pleas of guilty.[25]
[25] ts 44.
It is clear from the sentencing remarks that his Honour, in fact, gave no further discount for mitigating factors. As to count 1, his Honour said that he would have imposed a sentence of 5 years' imprisonment, but by reason of the discount for the pleas of guilty, that was reduced to 4 years' imprisonment. As to count 2, his Honour would have imposed 4 years' imprisonment but by reason of the discount for the pleas of guilty, that was reduced to 3 years 2 months' imprisonment.[26] His Honour accumulated the individual sentences, remarking that they were 'quite separate' from each other and, thus, the terms 'necessarily' needed to be accumulated rather than served concurrently.[27]
[26] ts 45.
[27] ts 44.
It is evident from his Honour's remarks that he did not expressly consider the operation of the totality principle. I note that the State prosecutor in his oral submissions on sentence submitted that the terms of imprisonment should be cumulative, taking into account the totality principle.[28]
[28] ts 35.
The appellant's submissions
In respect of ground 1, the appellant submitted that, although the offences were plainly serious, they were not representative of a continuous course of sexual offending against A. While A was a child, she was not as young as victims in other similar offences.[29] When these factors are taken into account and when the total effective sentence is compared with the outcomes in other cases said to be comparable, this court should conclude that the total effective sentence infringed the first limb of the totality principle.[30]
[29] AB 8 - 9; appeal ts 3 - 4.
[30] AB 9 - 10; appeal ts 3.
With respect to ground 2, it was submitted that the impugned part of the sentencing remarks should be construed as a finding of some remorse on the part of the appellant, but it is evident from the sentencing remarks that his Honour did not reduce the sentences to take into account this factor.[31]
[31] AB 10 - 12; appeal ts 6 - 7.
General appellate principles
The following general principles are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(5)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
It is convenient to deal with ground 2 first.
Ground 2 - disposition
There is no merit in ground 2.
When the alleged finding of remorse set out in [23] of these reason is considered in context, it is evident that his Honour did not, in fact, make a finding that the appellant was remorseful.
I have reached this conclusion for these reasons.
First, the actual words used by his Honour fall short of a finding of remorse. They speak only of a position where the appellant 'may' have remorse for the events which constitute the offending.
Second, defence counsel did not, in either his written or oral sentencing submissions, assert that remorse was a mitigating factor. Defence counsel did submit that the appellant was entitled to mitigation by reason of his pleas of guilty, his acceptance of responsibility and his willingness to undertake counselling,[32] but he did not submit that the appellant was entitled to any mitigation for remorse.
[32] ts 31; AB 68.
The onus is upon an offender to establish remorse on the balance of probabilities. As McLure P and Newnes JA observed in Rowsell v The State of Western Australia:[33]
The offender bears the onus of establishing remorse on the balance of probabilities. In determining whether an offender is remorseful, a sentencing judge is entitled to have regard to the appellant's conduct as a whole. Remorse, if genuine, will generally be an important consideration in sentencing and a sentencing judge is not bound to take at face value an offender's statement that he or she is remorseful. Nor will a plea of guilty of itself establish remorse although, together with other relevant evidence, it may be a relevant factor in enabling an inference of remorse to be drawn.
[33] Rowsell v The State of Western Australia [2015] WASCA 2 [17].
In that case, I agreed with their Honour's observations and made the following additional comment:[34]
Remorse is a mitigating factor which may be considered under s 9AA(6) of the Sentencing Act 1995 (WA). Remorse is not to be equated with sorrow for being caught, an acknowledgement that conviction is inevitable or regret on the offender's part that he or she faces some kind of sanction. Remorse, if it is to be mitigating, at least requires a realisation by the offender that what he or she did was morally wrong and some sign of sorrow for the impact or consequences of the offence.
[34] Rowsell [51].
There is nothing in the materials before his Honour which indicates that the appellant accepted that what he did was morally wrong or that he was sorry for the impact the offences had had on the victim.
His Honour did not err as alleged. Leave to appeal on ground 2 should be refused.
Ground 1 - disposition
The maximum penalty for an offence contrary to s 329(2) of the Code, of 20 years' imprisonment, emphasises the seriousness of the offences committed by the appellant.
The primary sentencing considerations for sexual offending against children are punishment of the offender, specific and general deterrence and the protection of vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case. There is no tariff for sexual offences against children. The ordinary disposition, as a matter of fact, is that terms of immediate imprisonment are imposed for offences of the type committed by the appellant.
A focus of the appeal was the comparable cases. The State gave some emphasis to the cases of VIM v The State of Western Australia[35] and The State of Western Australia v Prince.[36] Each of these cases concerned multiple counts of sexual offending against a child.
[35] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
[36] The State of Western Australia v Prince [2011] WASCA 22.
In VIM, this court analysed a large number of cases where an offender had committed more than five sexual offences. Schedule A to that judgment sets out cases where the offender pleaded guilty. The court identified a term of imprisonment of around 6 years 8 months was the most common sentence expected.[37] The court also attempted to analyse cases where sentences had been imposed after trial. However, the sample was too small and too diverse.[38]
[37] VIM [309].
[38] VIM [310].
In Prince, McLure P referred to a number of cases decided since VIM involving multiple (being more than five) sexual offences against children. Her Honour referred to 12 cases where the offender pleaded guilty and six cases where the offender was convicted after trial.[39]
[39] Prince [20] ‑ [22].
It is evident from the analyses carried out in VIM and Prince that the total effective sentence imposed upon the appellant in this case exceeds the 6 years 8 months sentence identified in VIM as being the most common sentence expected in cases of multiple (being more than five) sexual offences against children. It is also higher than a number of the total effective sentences in the cases identified by McLure P in Prince, where the offender had pleaded guilty.
Of course, as I have already mentioned, there is no tariff for sexual offences committed against children and the outcomes in other cases, while plainly relevant, are not necessarily decisive in establishing an infringement of the first limb of the totality principle.
The parties cited other cases apart from VIM and Prince. The appellant referred to SG v The State of Western Australia;[40] ARK v The State of Western Australia;[41] DKA v The State of Western Australia[42] and The State of Western Australia v PJW.[43]
[40] SG v The State of Western Australia [2013] WASCA 236.
[41] ARK v The State of Western Australia [2014] WASCA 45.
[42] DKA v The State of Western Australia [2015] WASCA 112.
[43] The State of Western Australia v PJW [2015] WASCA 113.
The respondent cited Chinnery v The Queen[44] and GNR v The State of Western Australia.[45]
[44] Chinnery v The Queen [2000] WASCA 295.
[45] GNR v The State of Western Australia [2015] WASCA 5.
In SG, the offender was convicted after trial of two counts of indecently dealing with a child under the age of 13 years, one count of sexually penetrating a child under the age of 13 years, six counts of sexually penetrating a child under the age of 16 years who was a de facto relative and four counts of sexually penetrating a child who was a de facto relative.[46] The offending was much worse than the offending in the present case. In SG, the offender's offending commenced when the victim was 11. She became pregnant to the offender.[47] The offender was sentenced to a total effective sentence of 12 years' imprisonment. He appealed to this court, alleging an infringement of the first limb of the totality principle. Leave to appeal was refused.[48]
[46] SG [2].
[47] SG [4], [18].
[48] SG [3], [37] ‑ [38].
The offending in ARK was also much worse than the offending in the present case. In ARK, the offender was convicted after trial of eight counts of aggravated sexual penetration of his de facto child who was under the age of 16 years and one count of attempted aggravated sexual penetration of the same de facto child.[49] He received a total effective sentence of 12 years' imprisonment.[50] The offender was an intimidating partner and stepfather who commenced the offences when the victim was 10, and continued with them until she was 15.[51] This court rejected the offender's contentions that the sentencing judge erred by characterising the offences as falling towards the upper end of the scale for offending of its type and that the total effective sentence infringed the first limb of the totality principle.[52]
[49] ARK [2].
[50] ARK [9].
[51] ARK [73].
[52] ARK [85], [95] ‑ [96], [212], [216].
In DKA, the offender was convicted after trial of seven counts of indecent dealing against his de facto child, K, who was under the age of 16 years, and two counts of sexually penetrating K when she was under the age of 16 years. The counts of sexual penetration involved the appellant, on one occasion, penetrating the victim's vagina with his fingers and, on another occasion, penetrating her vagina with his penis. The appellant received a total effective sentence of 7 years 8 months' imprisonment.[53] He appealed to this court on a number of grounds. For present purposes, it is only necessary to note ground 1, which alleged that the individual sentence of 5 years 8 months' imprisonment on count 20, for the offence of sexually penetrating the victim by inserting his penis into her vagina, was manifestly excessive and ground 4, that the total effective sentence infringed the totality principle.[54] This court refused leave to appeal in respect of both grounds and, ultimately, the appeal was dismissed.[55]
[53] DKA [3] ‑ [15].
[54] DKA [28], [31].
[55] DKA [45], [57] ‑ [59].
In PJW, the offender was convicted after trial of seven counts of sexually penetrating a de facto child under the age of 16 years and two counts of indecent dealing with a de facto child under the age of 16 years. The offences of sexual penetration involved various acts, including digital/anal penetration, penile/anal penetration, fellatio, penile/vaginal penetration and cunnilingus.[56] At first instance, the offender received a total effective sentence of 6 years 6 months' imprisonment.[57] The State appealed to this court, alleging that the total effective sentence infringed the first limb of the totality principle.[58] The appeal was allowed and the appellant was resentenced to a new total effective sentence of 9 years' imprisonment.[59] The victim in that case was aged between 7 and 8 years, and the offending occurred over a period of 10 months.[60]
[56] PJW [6].
[57] PJW [5].
[58] PJW [9].
[59] PJW [52] ‑ [53], [57], [59].
[60] PJW [10] - [11].
In my opinion, SG and ARK are not helpful comparators. The sentences imposed in those cases were considerably higher than the sentence imposed in the current case. This is understandable, given that the offending in SG and ARK, was, as I have already observed, much more serious than in the present case.
However, the outcomes in DKA and PJW, particularly the former, are more helpful to the appellant. In these case, the offenders, both of whom were convicted after trial, received total effective sentences more closely comparable to the appellant in the present case, having committed offences where the overall criminality was greater than in the appellant's case.
In Chinnery v The Queen, the offender was sentenced to 8 years' imprisonment (5 years 4 months post‑transitional), having pleaded guilty to one count of sexually penetrating his de facto child, who was under the age of 16 years.[61] While under the influence of alcohol and cannabis, he engaged in sexual intercourse with his 9‑year‑old stepdaughter.[62] By a majority, the Court of Criminal Appeal held that the sentence was manifestly excessive and reduced the sentence to 6 years' imprisonment (4 years post‑transitional).[63]
[61] Chinnery [13] ‑ [14].
[62] Chinnery [18].
[63] Chinnery [1], [30]. The respondent's written submissions do not refer to the fact that the appeal was allowed.
In GNR, the offender was convicted on his plea of guilty of one count of sexually penetrating a child aged between 13 years and 16 years, contrary to s 321(2) of the Criminal Code, an offence which carries a maximum penalty of 14 years' imprisonment. The offender in this case was sentenced to a 12‑month community based order with a 50‑hour community service requirement.[64] The offender's appeal against this sentence was dismissed.[65] It is unnecessary to say anything about the facts and circumstances of this case because they are completely different to the present case.
[64] GNR [2] ‑ [4], [11], [51].
[65] GNR [63] ‑ [65].
Returning to the present case, the individual sentences imposed upon the appellant are unchallenged and were plainly appropriate, despite the pleas of guilty. Some accumulation was to be expected, having regard to the fact that each offence occurred on a separate occasion. The offences involved a gross breach of trust and have had a serious adverse impact upon the victim. Considerations of deterrence, punishment and retribution required the imposition of a substantial total effective sentence.
However, as serious as the circumstances of these offences are, when looked at as a whole, it must be acknowledged that the offending did not involve some of the aggravating features commonly seen in cases of this type. The offences were not representative in nature and it was not contended by the State that they were committed as part of an ongoing course of conduct. There was no evidence that the appellant groomed or inflicted or threatened A in any way.
Having regard to the comparable cases, the total effective sentence imposed in this case is more consistent with the outcomes in cases in which the offender had committed more offences which are, in an overall sense, more serious.
In some of the comparable cases, sentences analogous to the total effective sentence in this case were given after trial. In my opinion, the total effective sentence imposed upon the appellant was not broadly consistent with the outcomes in other cases.
There is a further feature of this case to consider. Very unusually, the appellant spent 729 days on remand before being sentenced. The reasons for this inordinate delay are not completely clear. At one point, the State filed an indictment alleging 15 offences. After negotiations, only two of those were pursued. While the appellant's sentence was backdated to reflect the period on remand, it appears that the appellant has taken advantage of his time in custody to improve his vocational skills. In light of the very long period on remand, it may be assumed that, at the time he came to be sentenced, some measure of personal deterrence had been achieved.
Having regard to all of the circumstances, I am of the opinion that the total effective sentence that was imposed upon the appellant was not merely high, but was outside the range of a sound exercise of the sentencing discretion. In my view, the first limb of the totality principle has been infringed. The total effective sentence of 7 years 2 months' immediate imprisonment was more than was required to achieve the sentencing objectives of punishment, deterrence, retribution and rehabilitation. It was unreasonable or plainly unjust. Leave to appeal should be granted on ground 1. The total effective sentence of 7 years 2 months' immediate imprisonment should be set aside.
Resentence
This court should now resentence the appellant. Exercising the sentencing discretion afresh and having regard to the fact that the appellant did not challenge the individual sentences that were imposed upon him, I would impose the same individual sentences as the sentencing judge. In doing so, I would, pursuant to s 9AA of the Sentencing Act, give a discount of 20% for the pleas of guilty. To accommodate totality considerations, I would order that the sentence on
count 2 commence 2 years and 6 months after the commencement of the sentence on count 1. Thus, the total effective sentence is now 5 years 8 months' imprisonment. I would not interfere with the orders made by his Honour as to eligibility for parole and backdating.
Orders
The orders I would make are:
(1)Leave to appeal is refused on ground 2.
(2)Leave to appeal is granted on ground 1.
(3)The appeal is allowed.
(4)The sentence imposed by Eaton DCJ on 3 November 2017 is set aside.
(5)The appellant is sentenced to 4 years' imprisonment on count 1 and 3 years 2 months' imprisonment on count 2.
(6)The sentence imposed on count 2 is to commence 2 years 6 months after the commencement of the sentence on count 1.
(7)For the avoidance of any doubt, the total effective sentence is 5 years 8 months' imprisonment, with parole eligibility, backdated to commence on 19 September 2015.
MITCHELL JA & ALLANSON J:
Mazza JA has set out the circumstances of the appellant's offending, his personal circumstances, the sentencing judge's approach, the general principles governing appeals of this kind and the customary sentencing standards for offences of this kind.
We agree with Mazza JA, for the reasons which his Honour gives, that ground 2 is not established, and that leave to appeal on that ground should be refused.
However, we have taken a different view in relation to ground 1, which alleges that the total effective sentence of 7 years 2 months' imprisonment infringes the first limb of the totality principle. In our view, while leave to appeal on ground 1 should be granted, the ground is not established and the appeal should be dismissed.
In the present case, there was no complaint about the individual sentences of 4 years' immediate imprisonment imposed in respect of count 1 and 3 years 2 months' immediate imprisonment imposed in respect of count 2. In all the circumstances of the present case, particularly given that the two offences occurred on entirely separate occasions, some degree of accumulation of the individual sentences was clearly required. In this context, the question on appeal is whether it was open to the sentencing judge to take the view that the sentence for count 2 should be entirely cumulative on the sentence for count 1. It will have been open to his Honour to take that view so long as it was open to regard the total effective sentence of 7 years 2 months' imprisonment as bearing a proper relationship to the overall criminality involved in both offences viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally).
In comparison with some of the cases referred to by Mazza JA, the appellant's total effective sentence may be seen as high. However, in our view, it was open to the sentencing judge to exercise his sentencing discretion to order that the sentences for counts 1 and 2 be served wholly cumulatively, having regard to the first limb of the totality principle. The following significant features of the offending support this conclusion:
(a)The maximum penalty for both offences was 20 years' imprisonment.
(b)The complainant was only 14 years of age at the time the appellant committed the offences against her.
(c)The age gap between the appellant and respondent was about 16 years.
(d)The appellant was the complainant's stepfather. He was in a position of trust, and was a person to whom the complainant was entitled to look to for protection.
(e)The offences involved the appellant penetrating the complainant's vagina with his penis on one occasion, and penetrating the complainant's anus with his penis on the other occasion. Both offences involved ongoing penetration for a period of time.
(f)The offences occurred on entirely separate occasions.
(g)The manner in which the penetration occurred on the occasion of the first offence indicated some degree of deliberation.
(h)The fact the condom broke exposed the complainant to the risk of pregnancy.
(i)The offending had a predictably devastating effect on the complainant.
(j)The sentence imposed for count 2 represents a very lenient outcome, having regard to the nature and circumstances of that individual offence.
In these circumstances, and having regard to the appellant's antecedents, we do not regard the total sentence resulting from the decision to make the sentence imposed in respect of count 2 wholly cumulative on the sentence for count 1 as unreasonable or plainly unjust. In our view, the total effective sentence of 7 years 2 months' imprisonment can be seen to bear a proper relationship to the overall criminality involved in both offences viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally).
The appellant seeks to distinguish the present case from many other cases dealing with offending of this kind on the basis that the State did not submit that the indicted counts were representative of ongoing sexual abuse.
However, in considering the significance of that difference it is important to bear in mind the manner in which courts in this State generally deal with a finding that a count is representative of a continuing course of conduct. Generally, the representative nature of a count does not aggravate the offending. An offender cannot be punished for offences of which he or she has not been charged or convicted. However, the representative nature of the counts may demonstrate that the offender's criminal conduct was not isolated or an aberration. As such, the offender is generally not entitled to any leniency or discount on the basis that his or her offending was out of character.[66]
[66] Counsel for the State referred to CA v The Queen[2000] WASCA 176 [18], [50]-[51] and Haeusler v The Queen (Unreported, WASCA, Library No 960387, 19 July 1996) 3 (Ipp J). For more recent examples of this approach see KMB v The State of Western Australia [2010] WASCA 212 [120]; MMC v The State of Western Australia [2012] WASCA 187 [61]; CJF v The State of Western Australia [2012] WASCA 69 [35]; GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [20]; AJ v The State of Western Australia [2016] WASCA 13 [54].
We note that, in Victoria and New South Wales, it has been held that in dealing with a representative count the court may look to conduct the charge represents in order to judge the offending in its full context. The context is likely to bear upon matters such as the extent of culpability, need for specific deterrence and prospects of rehabilitation, and may lead to a heavier sentence than a charge related to an isolated incident.[67] This approach is at least arguably consistent with the observation of McLure P (with whom Pullin JA and Allanson J agreed) in JAW v The State of Western Australia that:[68]
[A] sentencing judge is bound to take into account all surrounding circumstances relevant to the commission of the offence. The fact that an offence is not isolated is a relevant sentencing consideration. It is relevant to an assessment of the weight to be given to personal deterrence and the protection of the public.
[67] DPP v Walsh (a pseudonym) [2018] VSCA 172 [19] - [20]; Lago v The Queen [2015] NSWCCA 296 [48] - [50]. See also Baines v The Queen [2016] NSWCCA 132 [5], [57], [127] - [128]. For a discussion of a possible difference of approach between the courts of those States see Ly v The Queen [2014] FCAFC 175; (2014) 227 FCR 304 [80] - [83].
[68] JAW v The State of Western Australia [2012] WASCA 7 [35].
It is unnecessary and inappropriate in the present case to attempt to resolve whether the representative nature of a count may lead the court to impose a heavier sentence than for an isolated incident, in the manner described at [74] above. The important point for present purposes is that generally the past practice of this court has been to treat the representative nature of the count in the manner described at [73] above. That general approach should be kept in mind when comparing the present case with those involving representative counts.
In the present case, there is limited mitigation to be found in the absence of other proved conduct of the kind charged in counts 1 and 2. The appellant is not a person of good character generally. The fact that he deliberately sexually penetrated his stepdaughter, on two entirely separate occasions, limits the degree to which the offending can be characterised as an out of character aberration.
Reference was also made to the fact that the appellant spent an unusually long time on remand prior to sentence. There will be cases where service of a long period on remand will have significance for the sentence imposed. For example, the service of a significant period in custody on remand for an offence ordinarily requiring a sentence of immediate imprisonment may be taken into account, in an appropriate case, in deciding to impose a non-custodial sentence. However, we cannot see any basis in principle for reducing the length of a sentence of immediate imprisonment by reason of time spent in custody where the sentence is to be backdated to the beginning of the remand period. The impact of a sentence of immediate imprisonment backdated in that manner is no different from a sentence imposed on a person who has spent no time in remand.
For the above reasons, we would make the following orders in the appeal:
(1)Leave to appeal on ground 1 is granted.
(2)Leave to appeal on ground 2 is refused.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
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