JDF v The State of Western Australia

[2016] WASCA 221

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   JDF -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 221

CORAM:   BUSS P

MAZZA JA

HEARD:   24 AUGUST 2016

DELIVERED          :   14 DECEMBER 2016

FILE NO/S:   CACR 232 of 2015

BETWEEN:   JDF

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GOETZE DCJ

File No  :IND 148 of 2015

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of five counts of sexual or indecent offending against a girl - Total effective sentence of 8 years 6 months' imprisonment - Totality principle

Legislation:

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

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr D N Ryan

Respondent:     No appearance

Solicitors:

Appellant:     Chelmsford Legal

Respondent:     Director of Public Prosecutions (WA)

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

APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59

ARK v The State of Western Australia [2014] WASCA 45

CJF v The State of Western Australia [2012] WASCA 69

DKA v The State of Western Australia [2015] WASCA 112

M v The State of Western Australia [2006] WASCA 256

PP v The State of Western Australia [2004] WASCA 144

RDC v The State of Western Australia [2012] WASCA 16

RFS v The State of Western Australia [2012] WASCA 58

SG v The State of Western Australia [2013] WASCA 236

The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373

The State of Western Australia v PJW [2015] WASCA 113

Woods v The Queen (1994) 14 WAR 341

1. BUSS P:  The appellant has applied for leave to appeal against sentence.

2. The appellant was tried in the District Court before Goetze DCJ and a jury on 10 counts in an indictment.  Each of the counts alleged sexual or indecent offending against a girl, C.  The appellant was convicted on counts 1, 2, 3, 4 and 6.  He was acquitted on counts 5, 7, 8, 9 and 10.

3. Count 1 alleged that, on an unknown date between 10 March 2010 and 19 June 2010 at a Perth suburb, the appellant sexually penetrated C, a child under the age of 13 years, by engaging in cunnilingus, contrary to s 320(2) of the Criminal Code (WA) (the Code).

4. Count 2 alleged that, on the same date and at the same place as in count 1, the appellant sexually penetrated C, a child under the age of 13 years, by penetrating her vagina with his fingers, contrary to s 320(2) of the Code.

5. Count 3 alleged that, on a different unknown date between 10 March 2010 and 19 June 2010 at a Perth suburb, the appellant sexually penetrated C, a child under the age of 13 years, by penetrating her vagina with his penis, contrary to s 320(2) of the Code.

6. Count 4 alleged that, on an unknown date between 20 June 2010 and 12 May 2012 at a Perth suburb, the appellant sexually penetrated C, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis, and that C was then under his care, supervision or authority, contrary to s 321(2) read with s 321(7)(b) of the Code.

7. Count 6 alleged that, on a different unknown date between 20 June 2010 and 12 May 2012 at a Perth suburb, the appellant sexually penetrated C, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis, and that C was then under his care, supervision or authority, contrary to s 321(2) read with s 321(7)(b) of the Code.

8. The trial judge imposed individual sentences of immediate imprisonment as follows:

   (a)count 1:     3 years 6 months;

   (b)count 2:     3 years 6 months;

   (c)count 3:     4 years 6 months;

   (d)count 4:     5 years; and

   (e)count 6:     4 years 6 months.

9. His Honour ordered that the sentence for count 1 be served cumulatively upon the sentence for count 4.  The other sentences were ordered to be served concurrently with each other and concurrently with the sentence for count 4.  The total effective sentence was therefore 8 years 6 months' imprisonment.  A parole eligibility order was made.  The total effective sentence was backdated to 24 September 2015, being the date on which the appellant was taken into custody for the offences.

The facts and circumstances of the offending and the appellant's personal circumstances

1. The appellant was born on 21 November 1967.  He is single and does not have any children.  The appellant completed his schooling at the age of 15.  He has a history of labouring and factory work.

2. C's family of origin was dysfunctional.  She was not wanted.  Her father and brother assaulted her violently.  C's mother appeared to be disinterested in her welfare.

3. When C was aged 12 she went to live with the appellant in his home.  The Department of Child Protection approved those living arrangements.  C was under the appellant's care, supervision and authority.  Shortly after C commenced living with the appellant, he began to molest her.

4. As to count 1, the appellant, without warning, pushed C onto a couch in the lounge room of his home.  He lifted her skirt, removed her underpants and performed cunnilingus on her.  He held her down as she struggled against him.

5. As to count 2, after the appellant had performed cunnilingus on C (count 1), he penetrated her vagina with his fingers. 

6. Counts 1 and 2 were committed during one episode of offending.

7. As to count 3, a few days after the appellant committed counts 1 and 2, C was watching television in the appellant's bedroom.  When the appellant arrived home from work, he removed his and C's clothing and then penetrated her vagina with his penis. 

8. The trial judge found that, after the commission of count 3, the appellant 'repeatedly engaged in sexual penetration' of C (ts 349).  Although most of the other acts of sexual penetration were indistinguishable one from the other, C could recall count 4 because, on that occasion, the appellant ejaculated in her vagina.  On other occasions he usually withdrew before ejaculation (ts 349).

9. As to count 6, C recalled that, shortly before she ceased living with the appellant, he penetrated her vagina with his penis on the last occasion.  He ejaculated on C's stomach.  The appellant had fought with C and accused her of sleeping with boys. 

10. When the offending occurred the appellant was aged between 42 and 44 and C was aged between 12 and 14.

11. His Honour said that the offences of which the appellant was convicted were 'representative of a wider repertoire of events' (that is, sexual offending) (ts 350).  Later, his Honour reiterated that the counts on which the appellant had been convicted were 'representative offending' (ts 353).

12. The information before the trial judge included a psychological report dated 12 November 2015 from a psychologist, Cinzia Zuin, and a pre‑sentence report dated 16 November 2015.

13. Ms Zuin noted in her report that the appellant emphatically denied responsibility for his offending behaviour.  He claimed that C had fabricated the allegations because she needed money.  The appellant made disparaging comments about C.  He focused heavily on deflecting attention from himself.  The appellant blamed his lawyer for the guilty verdicts and was critical of the police investigation.

14. Ms Zuin expressed the view that the appellant had exploited C with little regard for the potential impact of his offending on her psychological and emotional well‑being.  He treated C as a sexual object.  Ms Zuin said the appellant may have had a sense of entitlement to behave as he did because of his belief that he had given C a roof over her head and she was consequently indebted to him.

15. Ms Zuin concluded:

    Notwithstanding [the appellant's] abuse of trust and his position as a carer he is assessed as presenting a low risk of reoffending in the future.  This rating could be further consolidated if [the appellant] is not permitted any unsupervised contact with children in his home in the future.  [The appellant] does not impress as an individual who engages in predatory behaviour by pursuing contact with children, therefore opportunities to reoffend in a like manner are unlikely to be available to [the appellant] if there are no children in his home.

    [The appellant] has significant issues associated with low self‑esteem, poor self­‑worth, lack of confidence, inadequacy and social ineptness, exacerbated by poor physical self‑perception.  

16. His Honour referred to a victim impact statement from C.  She said her 'biggest fear' is taking her own life.  She dwells obsessively upon the offending.  C does not trust people, she does not have friends, she does not want to leave her house and she has a very poor self‑image.  C worries about her future.  She does not want to have children.

17. The trial judge said that C was vulnerable.  She came to the appellant for protection.  C had nowhere else to go.  The appellant breached her trust.  He ignored C's objections to his sexual predations.  The appellant continued to deny the offending and had no remorse.

18. The appellant does not have a prior criminal record in Western Australia.  He does, however, have convictions in Victoria for unlawful assault (two offences), using insulting words, reckless driving (two offences) and creating undue noise.  The appellant does not have a prior record of sexual offending.

19. The appellant does not have a history of alcohol or substance abuse.  He has suffered eye injuries, colitis and migraine headaches.  In 2013 he was diagnosed with depression.

20. His Honour made these comments about the very limited mitigation available to the appellant:

    In mitigation there's really not much that can be said.  There's no remorse expressed.  Indeed, you are still in denial.  You don't have much of a record, or you certainly don't have any relevant prior record, and I think that's about as far as mitigating matters can go (ts 352).

The ground of appeal

1. The sole ground of appeal alleges in essence that the total effective sentence of 8 years 6 months' imprisonment infringed the first limb of the totality principle.

2. The appellant does not challenge any of the individual sentences.  He does not allege that the trial judge made any express error and he does not challenge any of his Honour's findings of fact.

The merits of the ground of appeal

1. The maximum penalty for the offence of sexually penetrating a child under the age of 13 years is 20 years' imprisonment. See s 320(2) of the Code. The appellant was convicted of three of those offences.

2. The maximum penalty for the offence of sexually penetrating a child of or over the age of 13 years and under the age of 16 years, where the child is under the care, supervision or authority of the offender, is 20 years' imprisonment. See s 321(2) read with s 321(7)(b) of the Code. The appellant was convicted of two of those offences.

3. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant 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.

4. The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children.  See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).

5. There is no tariff for offences of the kind in question (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders.  The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing considerations.  It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary.  See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [68] ‑ [69] (Steytler P, McLure JA agreeing).

6. I have considered a number of cases with at least some features comparable to the appellant's offending.  See, in particular, RDC v The State of Western Australia [2012] WASCA 16; RFS v The State of Western Australia [2012] WASCA 58; CJF v The State of Western Australia [2012] WASCA 69; APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59; SG v The State of Western Australia [2013] WASCA 236; ARK v The State of Western Australia [2014] WASCA 45; DKA v The State of Western Australia [2015] WASCA 112; The State of Western Australia v PJW [2015] WASCA 113; and the cases referred to in those decisions. I have also considered other cases cited by counsel for the appellant.

7. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases.  There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features. 

8. The limits of the guidance afforded by comparable cases are flexible rather than rigid.  A sentencing range is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the totality principle.  The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. 

9. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range. 

10. In the present case, the very serious nature of the appellant's offending, including the vulnerability of C, are apparent from my summary of the facts and circumstances of the offending, including the trial judge's findings of fact in his sentencing remarks.

11. The appellant was, of course, entitled to proceed to trial.  However, he was unable to claim the mitigation that pleas of guilty would have brought.

12. As I have mentioned, his Honour found that the offences of which the appellant was convicted were representative of a course of conduct.  Although the appellant was only to be sentenced and punished for the offences of which he was convicted, the representative character of his offending demonstrated that those offences were not isolated incidents.  His offending was therefore not uncharacteristic or an aberration.

1. In my opinion, the total effective sentence of 8 years 6 months' imprisonment did not infringe the first limb of the totality principle.  A custodial term of that length was required in order properly to reflect the very serious nature of the appellant's offending and to give effect to the primary sentencing considerations of appropriate punishment and general deterrence, having regard to the need to protect vulnerable children.  Although the appellant was assessed as at a low risk of sexual reoffending against children, personal deterrence was still a relevant sentencing factor.  An accumulation of the sentence for count 1 and the sentence for count 4 was necessary.  The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the vulnerability of C, the pattern of sentencing in reasonably comparable cases and the very limited mitigation referred to by the trial judge.

2. It is not reasonably arguable that error by his Honour in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome.

3. The sole ground of appeal is without merit.

Conclusion

1. The sole ground of appeal does not have a reasonable prospect of success.  Leave to appeal should be refused and the appeal dismissed.

2. MAZZA JA:  I agree with Buss P.