JAF v The State of Western Australia
[2008] WASCA 231
•12 NOVEMBER 2008
JAF -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 231
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 231 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:39/2008 | 9 OCTOBER 2008 | |
| Coram: | WHEELER JA McLURE JA BUSS JA | 11/11/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| D | |||
| PDF Version |
| Parties: | JAF THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Sexual offences against child under care, supervision or authority Teacher/student relationship Consensual sexual acts Multiple counts Effective sentence 5 years 8 months' imprisonment Totality |
Legislation: | Criminal Code (WA), s 321 |
Case References: | Church v The State of Western Australia [2007] WASCA 215 Deering v The State of Western Australia [2007] WASCA 212 Galluccio v The Queen [2000] WASCA 178 Germain v The State of Western Australia [2004] WASCA 293 Hamilton v The Queen (Unreported, WASCA, 4 March 1997, Library No 970082) Kakai v The Queen (Unreported, WASCA, Library No 990082, 23 February 1999) Lefroy v The Queen [2004] WASCA 266 Longley v The Queen [2001] WASCA 71 Marris v The Queen [2003] WASCA 171 Miles v The State of Western Australia [2007] WASCA 258 Pendleton v The Queen [2002] WASCA 4 Poulton v The State of Western Australia [2008] WASCA 97 R v Avery [2002] WASCA 136 R v Hunt [2002] WASCA 324 The State of Western Australia v Lee [2008] WASCA 150 VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JAF -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 231 CORAM : WHEELER JA
- McLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND GER 3 of 2008
Catchwords:
Criminal law - Appeal against sentence - Sexual offences against child under care, supervision or authority - Teacher/student relationship - Consensual sexual acts - Multiple counts - Effective sentence 5 years 8 months' imprisonment - Totality
(Page 2)
Legislation:
Criminal Code (WA), s 321
Result:
Appeal allowed
Category: D
Representation:
Counsel:
Appellant : Mr P G Giudice
Respondent : Mr R G Wilson
Solicitors:
Appellant : George Giudice Law Chambers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Church v The State of Western Australia [2007] WASCA 215
Deering v The State of Western Australia [2007] WASCA 212
Galluccio v The Queen [2000] WASCA 178
Germain v The State of Western Australia [2004] WASCA 293
Hamilton v The Queen (Unreported, WASCA, 4 March 1997, Library No 970082)
Kakai v The Queen (Unreported, WASCA, Library No 990082, 23 February 1999)
Lefroy v The Queen [2004] WASCA 266
Longley v The Queen [2001] WASCA 71
Marris v The Queen [2003] WASCA 171
Miles v The State of Western Australia [2007] WASCA 258
Pendleton v The Queen [2002] WASCA 4
Poulton v The State of Western Australia [2008] WASCA 97
R v Avery [2002] WASCA 136
R v Hunt [2002] WASCA 324
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The State of Western Australia v Lee [2008] WASCA 150
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Woods v The Queen (1994) 14 WAR 341
(Page 4)
- WHEELER JA:
The appeal
1 On 26 February 2008 the appellant was convicted on his own plea of guilty of 12 counts of indecently dealing with a child aged between 13 and 16 years, and 21 counts of sexually penetrating a child aged between 13 and 16 years. It was admitted that the offences were committed in circumstances of aggravation, in that the complainant was under the care, supervision or authority of the appellant. I will return later to what that position of supervision or authority was. The maximum penalty for offences committed in such circumstances is 10 years' imprisonment in respect of indecent dealing and 20 years in respect of sexual penetration. The appellant received a total effective sentence of 5 years 8 months' imprisonment. He appeals against that sentence.
The offending
2 In brief, the circumstances were that the complainant was a school girl in a country town who was between 14 and 15 years of age at the time the offences were committed. She was a student at a school where the appellant was a teacher, although he was not her class teacher. He was also the coach of the water polo team in which she played, and was a friend of her family. He was 34 years of age and married with two small children. The complainant at times babysat the appellant's children. The appellant's position of authority, then, was the general authority of a teacher at a school at which the complainant was a student, although he had no direct responsibility for her.
3 It appears that the complainant and the appellant liked each other, and over a time an emotional relationship of some kind developed between them. Then, over a period of four months, the appellant engaged the complainant in sexual activity that progressed from fondling to cunnilingus and fellatio through to penetration of the complainant's vagina with the appellant's penis. The complainant apparently regarded the relationship as one of boyfriend and girlfriend, and it appears that on occasions the appellant referred to it in the same way.
Mitigating circumstances
4 There were a number of mitigating features, both personal to the appellant and arising from the circumstances of the case. While it is plainly irresponsible of any adult in the appellant's position to embark on such a relationship, it can at least be said that there appear to have been a
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- number of occasions on which the appellant was careful to ascertain, so far as he could, that the complainant was a willing participant in what took place. He took precautions against pregnancy and sexually transmitted disease. When it became clear that the relationship was being investigated, he advised the complainant to tell the truth. He made prompt admissions, and entered early pleas of guilty.
5 The appellant seems to have embarked upon the relationship at a time when he was depressed and vulnerable, after having been mistakenly diagnosed with testicular cancer, and having had one testicle surgically removed. It was plain from references provided to his Honour that the appellant was well regarded as a teacher and the offending appeared to be out of character. The appellant's wife was pregnant with their third child, and the appellant and his family will, naturally, suffer from the separation which his inevitable imprisonment must cause. He had, of course, lost his employment as a teacher.
Aggravating circumstances
6 There were, however, also a number of aggravating features. I have already mentioned the appellant's position as a teacher at the complainant's school, and the fact that he was her water polo coach and a family friend. A moment's reflection would have made it apparent to the appellant that, having regard to those circumstances and having regard to the complainant's age, she would be unlikely to possess the maturity which might have enabled her either to reflect sensibly upon the wisdom of sexual activity at her age at all, or to understand the likely social and emotional consequences which might result from an affair with the married father of small children. It appeared from the materials before his Honour the learned sentencing judge that, as one might have expected, the fact of the relationship becoming known and the fact of the appellant's having been charged had led the complainant to become the subject of unpleasant gossip and innuendo within her community. This is a likely outcome which a person of the appellant's age should have considered.
7 Further, the appellant's position meant that persons such as her parents, who might normally be expected to attempt to advise against unwise relationships, would be unlikely to be concerned with her relationship with the appellant and therefore would be unable to offer guidance concerning it. It appears that in this case, far from being concerned about the relationship, the complainant's mother on one occasion accepted the appellant's offer to bring the complainant home
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- from a school ball; however, he took advantage of that opportunity to have further sexual contact with her.
8 The repetition of the offending is also aggravating. The appellant repeatedly offended over a period of some four months, in circumstances where he must have known that his conduct was wrong.
Grounds of appeal
9 There are formulated in the appellant's case 15 grounds of appeal. They overlap to a considerable extent, and many refer, without context, to portions of his Honour's sentencing remarks. It is plain from a reading of the transcript as a whole, that his Honour was aware of all of the relevant facts, and carefully considered and structured his remarks to take all of those matters properly into account. Fortunately, it is not necessary to deal with each ground individually. The appellant, as I understand it, does not seek to appeal against each individual sentence; rather, as I understand it, it is submitted that the total term of 5 years and 8 months' imprisonment is disproportionate to the totality of the offending in the circumstances of this case (see grounds 2, 3 and 12). In my view, this submission is made out.
Relevant sentencing principles
10 While it remains correct to say that there is no "tariff" for sexual offending because of the wide variation in factual circumstances between offences, and between offenders, it is often possible to discern, by reference to cases which are either relevantly similar, or relevantly more or less serious, whether a sentencing discretion has miscarried. Undertaking that exercise in the present case suggests that a term of 5 years and 8 months' imprisonment is disproportionately severe, so as to manifest error. Before I turn to what appear to me to be cases of some relevance to the present, there are a number of matters raised by the respondent to which it is necessary to refer, for the purpose of putting them aside in the present case.
11 The State submits that "… the dominant sentencing considerations in child sexual abuse cases are punishment, general and personal deterrence and the protection of vulnerable children". It is therefore submitted that mitigatory factors personal to an offender are given less weight than they might otherwise be given. A related submission was that in cases involving sexual offending, the fact that the offender is otherwise of good character ordinarily carries little weight.
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12 It is true that observations of the kind found in the State's submissions are frequently to be found in cases dealing with sexual offences involving children. However, it is important to appreciate the context in which such observations generally come to be made. The cases in which dominant considerations are the protection of children, to such an extent that personal factors are given very little weight are, when properly analysed, generally cases in which the offender can be characterised as a "sexual predator", in the sense used by McLure JA in Poulton v The State of Western Australia [2008] WASCA 97 [4], either in relation to children generally or in relation to a particular child or group of children. In relation to offenders who are not "predators", and whose behaviour is plainly out of character, while general deterrence remains a factor of importance, personal deterrence, while remaining a factor to be considered, is of less weight.
13 Further, cases in which previous good character are given little weight are often cases in which the good reputation enjoyed by an offender is exploited by him or her in order to obtain or maintain a position of dominance over the child or children in question, or in order to avoid detection. An example is Longley v The Queen [2001] WASCA 71, in which the offender was a well respected housemaster at the boarding school attended by some of his victims. In that case, Scott J noted (at [6]) that the character references demonstrated the unlikelihood that a child in the position of the victims could expect to be believed, if he had thought to complain of the offender's conduct. In the present case, the appellant's position and good reputation did assist him in finding the opportunities to be alone with the complainant, but this is not a case in which he abused that position in order to establish dominance over her or in order to make it difficult for her to complain of his conduct.
14 During the course of oral argument, counsel for the State referred to VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1, as being a case potentially of some relevance as setting out appropriate sentencing standards and principles. However, the children in the majority of the cases examined in VIM were generally of an age where they would be regarded by members of the community as truly "children" rather than, for example, teenagers. Even where they were older children, the abuse often occurred in circumstances where there were either clear indications of force or threats, implicit or explicit, or where the relationship between the child and the offender was such as to render any suggestion of consent absurd (for example, parent and child), or there had been a long pattern of abuse commencing when the child was quite young. In the majority of cases, the offender was either the father,
(Page 8)
- stepfather or de facto father of the complainants. In VIM itself, "grooming" behaviour seems to have commenced shortly after puberty, although the offences charged commenced when each complainant was approximately 14, and the offender was the stepfather of the complainants, who regarded him as a father.
Comparison cases
15 In the present matter, relevant cases for comparative purposes are those involving children between the ages of 13 and 16, where there is no apparent element of force or threat and no family relationship, but where there is a significant disparity in age. I list briefly some of those which I have been able to consider, in descending order of length of sentence imposed. In each case, there was a plea of guilty and, for the earlier cases, I have recorded the sentences which would have been imposed under the transitional provisions.
• The State of Western Australia v Lee [2008] WASCA 150. The appellant was 25 years of age, one complainant six weeks short of her 16th birthday and the other one day short of her 15th birthday. There were 11 instances of sexual penetration, either penile or digital, in relation to the first complainant and four instances in relation to the second. In relation to each complainant, the appellant was convicted of one count of maintaining a sexual relationship. The sentence imposed was 18 months on each count, cumulative, with eligibility for parole.
• Poulton v The State of Western Australia. The appellant was 23 and the complainant 14. She came to his home, apparently in order to clean it. They engaged in sexual activity resulting in three counts of sexual penetration and one of indecent dealing. The total sentence was 2 years and 9 months.
• Germain v The State of Western Australia [2004] WASCA 293. The appellant was 27 and the complainant told the appellant she was 14. Both were intoxicated and at a party. They left the party and attended another house at which three incidents of indecent dealing and three of sexual penetration occurred. The total sentence was 2 years and 8 months with parole eligibility.
• R v Avery [2002] WASCA 136. The offender was 20 and the complainant 13. He had contacted her over the internet and there was clear evidence of grooming behaviour, in a series of incidents of increasing seriousness over a fortnight, ending with sexual penetration. The sentence was 2 years and 8 months in total.
(Page 9)
- • Deering v The State of Western Australia [2007] WASCA 212. The appellant worked with the complainant's mother and lived in the same house as the complainant. He commenced a sexual relationship with her within two months of moving in. When the complainant's mother discovered the relationship he moved out, but continued the relationship for approximately a year. He was 23 and the complainant 13. The overall sentence was 2 years and 6 months.
• R v Hunt [2002] WASCA 324. The offender was 28 and the complainant 14. There were six counts of sexual penetration, over a period of four months. The respondent and complainant were neighbours; an unusual feature was that the complainant's mother had apparently condoned the relationship. The overall sentence was 2 years with parole eligibility.
• Marris v The Queen [2003] WASCA 171. The appellant was approximately 20 and the complainant 13. They met at the York Show and engaged in consensual sexual activity on one occasion, resulting in a number of counts of indecent dealing and sexual penetration. On appeal, the balance of a 2-year sentence of imprisonment was ordered to be suspended for 18 months.
• Miles v The State of Western Australia [2007] WASCA 258. The complainant went out with the appellant. He was 22 and she 14. Alcohol was consumed by both. He took the complainant to his home and sexually penetrated her twice. The overall sentence was 1 year and 9 months with eligibility for parole.
• Kakai v The Queen (Unreported, WASCA, Library No 990082, 23 February 1999). The offender was 18 and the complainant 13. The complainant and her friend had gone to a party. When the party ended, the complainant, her friend, the offender and another man went to the other man's house. The friend and the other man disappeared into a bedroom and the appellant and complainant had sexual intercourse in the lounge room. On one count of sexual penetration, the offender received a sentence of 12 months with parole eligibility.
16 For completeness, I mention also two cases involving older complainants but more significant positions of authority. In Galluccio v The Queen [2000] WASCA 178, a 67-year-old employer engaged in an elaborate deception of a 17-year-old female employee which resulted in four offences of indecent dealing and one of attempted sexual penetration. A total effective term of 2 years' immediate imprisonment, with parole eligibility (1 year and 4 months under the transitional provisions), was
(Page 10)
- upheld on appeal. In Church v The State of Western Australia [2007] WASCA 215, a 48-year-old employer of a 16-year-old girl, who was also the father of the girl's friend, twice indecently dealt with her and once digitally penetrated her vagina during the course of what was effectively one incident while she was at work. A sentence of 2 years' imprisonment with eligibility for parole was upheld on appeal.
Conclusions
17 The offending in the present case is more serious than that in the first nine cases mentioned. That is in part because it continued over a period of some months, and there was a considerable amount of sexual activity, of different kinds on a number of occasions. Importantly, although the complainant's age is of course comparable with the age of a number of the complainants in the cases noted, the offending is significantly more serious than in those cases because of the appellant's age and the position which he occupied in relation to the complainant. The disparity in responsibility in particular is, for the reasons which I have already endeavoured to explain, very important. The legislature recognises that factor by the increased statutory maximum penalty provided where the child is under the care, supervision or authority of the offender. So far as the two employer cases are concerned, those offences had a serious element which is lacking in this case, in that the consent in Galluccio was procured by deceit and the offences in Church were non-consensual. However, the sexual conduct was clearly not so serious, and was not carried out over such a long period of time, as in the present case, and the complainants were older, so that the statutory maximum penalty (provided by s 322 of the Criminal Code (WA)) was less.
18 It is appropriate that the appellant receive a more severe overall sentence than any of the sentences canvassed above. However, appreciating that a sentence increases substantially in severity as its length increases, it appears to me that a term of 5 years and 8 months' imprisonment is so much more severe than any of those discussed above as to be disproportionate. In my assessment, a total sentence of the order of 4 years would have been justified in the present case.
19 In structuring the sentences which he imposed, his Honour, correctly in my respectful view, in effect divided up the offending into a variety of categories, imposing sentences which were concurrent with each other within those categories, but cumulative as between them. In order to achieve an effective total of 4 years, I would vary only the sentence
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- imposed in respect of count 23, and the order for cumulation in respect of count 33.
20 Count 23 was the "school ball" incident. It fell into that category of cases involving sexual activity falling short of fellatio, cunnilingus, or sexual intercourse. In relation to the offences in that category, his Honour had imposed sentences of 8 months' imprisonment in relation to each count, save for count 23. It is plain that his Honour reduced artificially that sentence for reasons of totality, since he intended to order that it be served cumulatively. I would quash the sentence of 4 months imposed in relation to count 23 and substitute one of 6 months' imprisonment, being the term which is closer to that which his Honour considered was appropriate. However, in relation to count 33, which was the last act of sexual intercourse, I would order that the term of 22 months' imprisonment which his Honour ordered to be served cumulatively, be served concurrently.
21 The effect of those variations would be that the cumulative sentences would be the 20 months imposed in relation to count 7, which was the first act of cunnilingus (and on one view the first serious escalation of sexual activity), 22 months on count 15, which was the first act of sexual intercourse, and 6 months in relation to count 23, which was one of the counts of indecent dealing which his Honour picked out as particularly representing the way in which the appellant's position had afforded him the opportunity to be alone with the complainant. The total arrived at in that way would be 48 months' imprisonment. I would order that the appellant be eligible for parole, so that he would be eligible for parole after serving 2 years of that term. The term of imprisonment should of course commence on the date nominated by the learned sentencing judge, that being 25 February 2008.
22 McLURE JA: I agree with the orders proposed by Wheeler JA. However I propose to state my own reasons for the conclusion that the total sentence of 5 years and 8 months' imprisonment breaches the totality principle.
23 The facts on which the convictions are based are detailed in the reasons of Wheeler JA. It is not necessary to repeat them here. All of the offences involved a circumstance of aggravation, namely that the complainant was under the care, supervision or authority of the appellant. In the case of the s 321(2) offences, that increases the maximum penalty from 14 years to 20 years' imprisonment. In the case of the s 321(4) offences, the maximum penalty is increased from 7 years to 10 years' imprisonment. Thus, total sentences imposed for s 321(2) and (4)
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- offences without that circumstance of aggravation are not directly comparable when considering relevant sentencing patterns.
24 There are a number of cases in which this court and the Court of Criminal Appeal have reviewed sentences imposed for sexual offences against complainants who were under the offenders' care, supervision or authority in other than a familial capacity . Those cases include Lefroy v The Queen [2004] WASCA 266; Longley v The Queen [2001] WASCA 71; Pendleton v The Queen [2002] WASCA 4 and Hamilton v The Queen (Unreported, WASCA, 4 March 1997, Library No 970082). After converting the sentences which were imposed before the commencement of the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), the total sentences ranged from 1 year and 4 months to 8 years. The total sentence at the high end of the range (Pendleton) involved over 100 sexual offences committed by a pre-primary school teacher relating to 11 victims aged between 4 and 5 years. This offending is orders of magnitude more serious than the appellants offending. As there are significant differences in the circumstances of the offences and the offenders, these cases also provide only marginal guidance in determining whether the total sentence in this case breached the totality principle. That principle requires the total sentence imposed on an offender to bear a proper relationship to the overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341, 352.
25 It is relevant to bear in mind that, in proving the circumstance of aggravation, the State does not have to establish that the offence occurred because the offender used any power or influence arising from the appellant's position vis a vis the complainant. That is, the State does not have to establish a causal connection between the position of care, supervision or authority and the commission of the offences. However, proof of such a causal connection would increase the seriousness of the offending. No such causal connection was established in this case. Nevertheless, it remains the position that the offences committed by the appellant are serious and are the type of offences for which general deterrence is a weighty discretionary factor. That explains why, notwithstanding the significant mitigatory factors in this case, a sentence of immediate imprisonment is the only appropriate sentencing option. As noted by Wheeler JA, the mitigatory factors include the following: when the appellant became aware that his conduct was being investigated, he advised the complainant to tell the truth; he made prompt admissions and
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- entered an early plea of guilty; he demonstrated true remorse; the conduct occurred at a time when the appellant was depressed and vulnerable; and the conduct was out of character. In these circumstances I am satisfied that an aggregate sentence of 5 years and 8 months is more than is fairly necessary to achieve all the recognised sentencing objectives including punishment, retribution and deterrence.
BUSS JA: I agree with Wheeler JA.
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