JFB v The State of Western Australia
[2024] WASCA 41
•24 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JFB -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 41
CORAM: QUINLAN CJ
MAZZA JA
VANDONGEN JA
HEARD: 7 DECEMBER 2023
DELIVERED : 24 APRIL 2024
FILE NO: CACR 21 of 2023
BETWEEN: JFB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : IND 481 of 2021
Catchwords:
Criminal law – Appeal against sentence – Child sex offences – Whether total effective sentence breaches first limb of the totality principle – Relevance of self-report and guilty pleas to certain offences
Legislation:
Criminal Code (WA), s 329
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S F Rafferty SC |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Seamus Rafferty |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
AIM v The State of Western Australia [2014] WASCA 155
ARK v The State of Western Australia [2014] WASCA 45
Atkinson v The State of Western Australia [2017] WASCA 154
CAND v The State of Western Australia [2018] WASCA 101
CJF v The State of Western Australia [2012] WASCA 69
Coutts v The State of Western Australia [2023] WASCA 38
Headley v The State of Western Australia [2018] WASCA 37
Hill v The State of Western Australia [2014] WASCA 150
JJR v The State of Western Australia [2018] WASCA 51
Kabambi v The State of Western Australia [2019] WASCA 44
KSN v The State of Western Australia [2017] WASCA 156
LYN v The State of Western Australia [2019] WASCA 45, 18
MAS v The State of Western Australia [2012] WASCA 36
Menmuir v The State of Western Australia [2018] WASCA 13
MHE v The State of Western Australia [2019] WASCA 133
Mills v The State of Western Australia [No 2] [2017] WASCA 52
Pennetta v The State of Western Australia [2013] WASCA 234
Roberts v The State of Western Australia [2014] WASCA 239
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Searle v The State of Western Australia [2023] WASCA 129
SG v The State of Western Australia [2013] WASCA 236
The State of Western Australia v BKJ [2018] WASCA 136
The State of Western Australia v CGT [2018] WASCA 226
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Prince [2011] WASCA 22
JUDGMENT OF THE COURT:
Introduction and overview
Over a period of approximately four years, the appellant, a man then in his early 30s, sexually abused his de facto daughter, a child who was between 8 and 12 years of age during the period of the abuse. The appellant's offending included indecently touching the victim on her vagina, breasts and buttocks, penetrating the victim's vagina with his fingers, and putting his penis into the victim's mouth.
The appellant's offending came to light in 2020 when the victim made disclosures to her school friends. On 1 June 2020 the victim participated in a child witness interview, in which she described a number of occasions upon which the appellant had indecently dealt with, or sexually penetrated, her.
Later that same day, the appellant was interviewed by police, following his arrest on a number of charges of indecently dealing with, and sexual penetration of, a child. His immediate response to the charges was:
Okay, so there's no penetration. I did four indecent dealings with myself and her over three years. Um, she touched me, I touched her, I didn't put anything inside of her myself or anything else.
The appellant went on to describe four separate occasions on which he indecently dealt with the victim by touching her vagina and by procuring the victim to touch his penis.
The appellant was charged, on indictment, with 10 counts of indecently dealing with a child under the age of 16 years who he knew to be his de facto child (indecent dealing), contrary to s 329(4) of the Criminal Code and four counts of sexually penetrating a child under the age of 16 years who he knew to be his de facto child (sexual penetration), contrary to s 329(2) of the Criminal Code. The maximum sentence for these offences is 10 years and 20 years imprisonment respectively. The 14 charges in total were alleged to have occurred on eight separate occasions.
The charges were listed for trial before Petrusa DCJ and a jury commencing on 7 November 2022. The victim's evidence had been pre‑recorded on 26 November 2021.
At the commencement of the trial the appellant pleaded guilty to eight of the counts of indecent dealing (counts 1 to 4 and counts 11 to 14 on the indictment). Those charges related to the four separate occasions described by the appellant in his record of interview. The appellant pleaded not guilty to the remaining six charges, including the charges of sexual penetration.
On 10 November 2022 the jury returned verdicts of guilty in relation to the remaining two counts of indecent dealing (counts 7 and 9) and three of the counts of sexual penetration (counts 5, 6 and 8). The appellant was found not guilty of the remaining count of sexual penetration (count 10).
On 8 February 2023 the learned sentencing judge sentenced the appellant, in relation to the 13 convictions, to a total effective sentence of 10 years imprisonment. The sentences for the individual offences (together with their concurrency or cumulacy) were as follows:
Count No
Offence type
Sentence
Cumulative/
Concurrent
Count 1
Indecent dealing
2 years imprisonment
Cumulative
Count 2
Indecent dealing
12 months imprisonment
Concurrent
Count 3
Indecent dealing
2 years imprisonment
Concurrent
Count 4
Indecent dealing
12 months imprisonment
Concurrent
Count 5
Sexual penetration
3 years and 10 months imprisonment
Cumulative
Count 6
Sexual penetration
3 years and 6 months imprisonment
Concurrent
Count 7
Indecent dealing
12 months imprisonment
Concurrent
Count 8
Sexual penetration
4 years and 2 months imprisonment
Head sentence
Count 9
Indecent dealing
12 months imprisonment
Concurrent
Count 11
Indecent dealing
2 years imprisonment
Concurrent
Count 12
Indecent dealing
16 months imprisonment
Concurrent
Count 13
Indecent dealing
2 years imprisonment
Concurrent
Count 14
Indecent dealing
16 months imprisonment
Concurrent
The appellant appeals against the total effective sentence on the basis that it was manifestly excessive and thereby infringed the first limb of the totality principle.
The appellant submitted that the total effective sentence was plainly unjust or unreasonable, particularly having regard to the appellant's confessions, as well as his pleas of guilty, in relation to the eight charges of indecent dealing. Those pleas were entered at the first available opportunity and, the appellant submitted, had he not disclosed that offending, he would never have been convicted of it.
While we accept that the total effective sentence imposed on the appellant was certainly high, and at the upper end of the range of sentences customarily imposed for offending of this type, we are not satisfied that the total effective sentence was so high as to manifest error. While the appellant was entitled to, and did, receive the maximum possible discount for the eight individual charges to which he pleaded guilty, he nevertheless pleaded not guilty to the most serious charges for which he was convicted, namely the three counts of sexual penetration. In assessing the appropriate total effective sentence for the appellant's offending as a whole the appellant was not entitled to the significant mitigation reflecting the public interest in avoiding the risk of further trauma and psychological harm to the victims of sexual offending against children. The victim in the present case was not spared the potentially retraumatising process of giving evidence.
In addition, the offences of sexual penetration for which the appellant was found guilty after trial all occurred on separate days and were serious examples of their type. Not only did they involve the inherent seriousness and breach of trust involved in any intrafamilial sexual offending against a child, the offences also involved persistence over the protest of the victim, a degree of force (such as grabbing her jaw and pulling her mouth open) and caused pain to the victim. Furthermore, the offences for which the appellant was convicted were not isolated occasions but representative of more extensive sexual abuse, the effect of which has had a profound and pervasive effect on the victim's life.
While we would grant leave to appeal on the basis that the ground was reasonably arguable, we would dismiss the appeal.
Circumstances of the offending
The circumstances of the appellant's offending, taken from the learned sentencing judge's sentencing remarks, were as follows.
The victim was born in 2004. Her mother met and formed a relationship with the appellant after the victim's mother and father separated in 2007.
In 2009 the appellant moved into a house in a suburb of Perth (the first house), with the victim's mother and the victim, who was about five years of age at the time. They lived in that house until 2012, during which time the appellant and the victim's mother had another child.
In 2015, the family moved to a house in a second suburb of Perth (the second house), where they lived until 2017, when the appellant and the victim's mother separated. The victim's recollection was that all of the appellant's offending occurred at the second house. She gave evidence that the appellant would offend against her almost every time her mother went out but that all of the occasions had blurred into one.
Counts 1 to 4 occurred on two separate occasions at the first house, initially when the victim was about eight years old and then approximately 12 months later, when she was nine or 10 years old. These counts reflected admissions made by the appellant. In cross‑examination, the victim agreed that she had not mentioned these incidents until questions by counsel for the appellant 'jogged [her] memory'.
On each occasion, the appellant was in his bedroom masturbating. The appellant called the victim into the room and asked her to touch his penis, which she did (counts 1 and 3). The victim moved her hand on the appellant's penis for a few minutes, while it was erect. On each occasion the appellant continued to masturbate while touching the victim on the vaginal area on the outside of her clothing (counts 2 and 4). The appellant subsequently ejaculated, but said that he left the room to do so.
Count 5 occurred at the second house. It was the last occasion upon which the appellant sexually abused the victim. The victim had been watching television, most likely in her bedroom, when the appellant came in and invited her to his room to watch a movie. The appellant and the victim went into his room. After a time, the appellant began to undress himself. The victim went to leave the room. The appellant told the victim that she did not need to leave, but she kept walking towards the door, at which point the appellant locked it.
The appellant removed the victim's pants, put his hand down her underwear, and touched her vaginal area. The victim repeatedly told the appellant to stop but he kept telling her that it was 'fine'. He stroked the victim's vaginal area before placing a finger or fingers inside of her. The victim's evidence was that the appellant placed his two middle fingers inside her and used his index finger to stroke her vaginal area as he digitally penetrated her (count 5).
Count 6 occurred at the second house and also involved digital penetration of the victim's vagina. On that occasion the victim had gone to bed at about 9.30 or 10.00 pm. The victim's mother went in to say goodnight, as she was going out and did not expect to return before the victim fell asleep. Sometime later, the victim woke to find the appellant lying behind her and, in the victim's words, 'squishing my butt and fingering me' (count 6). The victim turned and pushed the appellant in the chest pushing him away from her. The victim told the appellant to leave, which he did.
Counts 7 and 8 occurred on another occasion, at the second house. The victim was sitting at a computer near the entry area of the house. The appellant suggested that they watch a movie. He put on a movie and made popcorn.
While watching the movie and sitting on a sofa chair the appellant asked the victim to 'suck his penis'. The victim refused but the appellant was persistent. The victim continued to tell the appellant to go away. Eventually the appellant put his hand down the victim's pants and touched her buttocks (count 7). The appellant then pulled out his penis and came forward, sat across the victim's lap with his legs around her knees, kneeled up and put his penis in the victim's mouth. The appellant grabbed the victim's jaw and pulled her mouth open to do so (count 8).
Count 9 also occurred at the second house. Count 9 was alleged to have been committed on the same occasion as the allegation the subject of count 10. The appellant was found not guilty of the latter charge. On that occasion the victim was watching television either in her bedroom or in the lounge room. The appellant sat next to her, and played with her hair and touched her breasts (count 9).
Counts 11 to 14 also reflected admissions made by the appellant, in relation to sexual abuse of the victim on two separate occasions at the second house. The victim was approximately 11 years old at the time of these offences.
On each of those occasions, which were approximately six months apart, the appellant was again in his bedroom masturbating. The appellant invited the victim in and asked her to touch his penis, and on one of the occasions, asked her to jump on top of him. On each occasion the appellant's penis was erect, when the victim touched and rubbed his penis, while he continued to masturbate (counts 11 and 13). While he did so, the appellant put his hand down into the victim's pants and rubbed on her vaginal area on the skin (counts 12 and 14). The appellant again ejaculated, but as in the past, left the room to do so.
Appellant's personal circumstances
The appellant was born in 1982. He was between 31 and 35 years old at the time of the offending and 40 years old at the time of sentence.
The appellant was born in Perth, the eldest of two children. He had no memory of his parents living together, but had been told that his father was physically violent towards his mother. The appellant had some early contact with his father, until his father failed to return the appellant and his brother after an access visit. The appellant had some very limited contact with his father when he was about 10 years old, but otherwise his father had not been a part of his life.
The appellant's mother formed another relationship. Her new partner had two children from a previous relationship and they had another child together. The appellant's stepfather, however, did not contribute financially to the family or otherwise fulfil his parental duties. The appellant maintained a close relationship with his mother.
The appellant left school in year 10, after the family had moved to Melbourne for a period of time. Despite some periods of unemployment, the appellant had worked consistently in construction and labouring jobs, and later as part of a furniture removal business.
The appellant's relationship with the victim's mother was his most significant relationship.
The appellant had past issues with the use of illicit substances. He began using cannabis in high school and had abused methylamphetamine for three periods in his life, each period ranging between 12 and 18 months at a time.
The appellant had a criminal record, including driving offences, dishonesty offences and drug offences. He had no prior history of sexual offending and had never previously been sentenced to a term of imprisonment.
The learned sentencing judge was provided with a psychological report prepared in relation to the appellant by Ms Helen Fowler, psychologist, dated 5 February 2022. In that report, Ms Fowler:
(a)reported that the appellant denied a sexual attraction to the victim, or to children generally. Ms Fowler stated that she had no evidence that the appellant has a sexual interest in or preference for children, and that his offending was more consistent with opportunism and a sense of entitlement;
(b)expressed the opinion that the appellant had likely experienced pervasive low moods and possibly episodes of depression throughout his life. She said that the appellant presented with avoidant personality traits and impressed as having, at times, experienced feelings of resentment towards others. Ms Fowler said that the appellant avoided conflict, fearing others would judge him;
(c)expressed the opinion that the appellant had limited self‑awareness, would benefit from treatment and that further investigation during treatment as to why he offended was warranted; and
(d)concluded that the appellant had the capacity to abide by supervision or boundaries placed upon him and saw no reason to be concerned that he would not abide by the conditions and expectations of sex offender registration. Ms Fowler said that if the risk factors identified as being present were addressed (improved problem solving, and improved emotional awareness), the appellant's risk could be managed, and this would increase his probability of not reoffending.
Victim impact
A victim impact statement from the victim described the pervasive effect the appellant's offending had on her life, her schooling, on all her relationships and on her ability to connect with people. The victim said that she had to keep the offending secret for a very long time, and that the habit of keeping secrets was not one that she had been able to break. This kept the victim from having a close relationship with her mother.
The victim's relationship with her partner and friends was likewise affected, the most difficult being her relationship with her brother (the appellant's son). The victim was acutely aware that the events had impacted on him as well, and, while she wanted to be able to have a close bond with him, he resembled the appellant and at times this reminded her of what the appellant had done to her. The victim was left alone and isolated for much of her life and could not see a time when this would change.
Sentencing remarks
The learned sentencing judge set out the facts of the appellant's offending and the applicable maximum penalties, the impact of the offending on the victim and the appellant's circumstances as summarised above.
Her Honour recognised that, in relation to the offences for which the appellant pleaded guilty (counts 1 to 4 and counts 11 to 14 on the indictment), the pleas of guilty were made at the first reasonable opportunity. The learned sentencing judge also observed that, but for the appellant's admissions, he would not have been dealt with for those offences at all. Her Honour said that she would therefore give the maximum discount of 25% for those counts. The appellant was not entitled to any discount for a plea of guilty in relation to the other counts.
The learned sentencing judge considered that the appellant had 'a degree of remorse' for his conduct given his admissions and expression of remorse in his interview. Nevertheless, her Honour concluded that it could not be said that the appellant was entirely remorseful, such that the extent of any credit for remorse was limited.
The appellant's offending, the learned sentencing judge said, was very serious, and her Honour identified a number of matters that increased its seriousness.
First, the offending was sustained and repeated over a period of about four years; there being at least two periods of offending over two years.
Secondly, the victim was only eight years old when the appellant first offended, and 10 to 12 years old when it escalated.
Thirdly, the offending escalated over time, as the appellant became emboldened by the victim having not complained. The offending only stopped because of the appellant's separation from the victim's mother.
Fourthly, the appellant was 25 years older than the victim and was the victim's stepfather. The appellant's conduct involved a gross breach of his position of trust.
Fifthly, in relation to count 8, the appellant used force to open the victim's mouth so that he could put his penis in and, in relation to count 5, the appellant locked the victim in a room while he sexually penetrated her despite her repeatedly telling him to stop.
Sixthly, the learned sentencing judge said that the appellant was persistent, despite the victim making it clear she did not want to engage in sexual activity. The repeated nature of the abuse aggravated the appellant's offending.
The learned sentencing judge added that she found it difficult to accept that the appellant had no sexual interest in the victim. In any event, her Honour said that it remained the case that the appellant used the victim for his sexual gratification and that he did so as he did not wish to go to prostitutes because of the 'lack of connection or relationship'. To fulfil his sexual needs in those circumstances with a child who was his stepdaughter, the learned sentencing judge said, was 'nothing short of callous'.
Having regard to all relevant sentencing principles, her Honour then imposed the sentences set out at [9] above, including the orders for concurrency and cumulacy. The learned trial judge expressly referred to considerations of totality in that context.
Her Honour ordered that the appellant be eligible for parole and that the sentences commence on 8 October 2022, on account of the time the appellant had spent in custody.
Ground of appeal
The sole ground of appeal is that the total effective sentence of 10 years imprisonment infringed the first limb of the totality principle. The appellant does not allege any express error on the part of the learned sentencing judge or challenge any of the sentences imposed for the individual offences.
Legal principles
The legal principles governing appeals contending that the total effective sentence infringes the first limb of the totality principle are well known.[1]
[1] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
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.
The range of sentences imposed in other cases does not establish the bounds 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 are the unifying principles which sentences imposed in comparable cases reveal and reflect.
The limited utility of broadly comparable cases has been emphasised in the context of sexual offending, including sexual offending against children, given the wide variety of combinations of offending conduct involved in such offending. As this Court observed in CAND v The State of Western Australia:[2]
[B]ecause the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion. For those reasons there will necessarily be limits upon the utility of the process of argument presented on behalf of the appellant.
[2] CAND v The State of Western Australia [2018] WASCA 101 [48] (Martin CJ, Beech JA & Hall J).
To similar effect, in Pennetta v The State of Western Australia, Hall J (as his Honour then was) observed:[3]
Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the [sentence] relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. (authorities omitted)
[3] Pennetta v The State of Western Australia [2013] WASCA 234 [39] (Hall J).
The observations of Mitchell JA in JJR v The State of Western Australia,[4] cited with approval in MHEv State of Western Australia,[5] are also pertinent:
Often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.
[4] JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209 [168] (Mitchell JA).
[5] MHE v The State of Western Australia [2019] WASCA 133 (MHE) [81] (Mitchell & Beech JJA).
Disposition
For the reasons that follow, while we accept that the total effective sentence imposed on the appellant was certainly high, and at the very upper end of the range of sentences customarily imposed for offending of this type, we are not satisfied that the total effective sentence was so high as to manifest error.
In our view, the total effective sentence imposed on the appellant was broadly consistent with sentences customarily imposed and was not such that we can infer that it was affected by some implied error of sentencing principle.
Sentences customarily imposed
While recognising the limited utility of previous cases in an appeal such as the present one, the appellant identified a number of decisions which he submitted supported the conclusion that the total effective sentence imposed of 10 years imprisonment in the present case did not bear a proper relationship to the overall criminality involved in all of the offences. The appellant referred, in particular to The State of Western Australia v FJG,[6] The State of Western Australia v Prince,[7] The State of Western Australia v PJW,[8] Mills v The State of Western Australia [No 2],[9] Headley v The State of Western Australia,[10] Coutts v The State of Western Australia,[11] MAS v The State of Western Australia,[12] ARK v The State of Western Australia,[13] JJR v The State of Western Australia,[14] AIM v The State of Western Australia,[15] CJF v The State of Western Australia,[16] KSN v The State of Western Australia[17] and SG v The State of Western Australia.[18]
[6] The State of Western Australia v FJG [2012] WASCA 206 (FJG).
[7] The State of Western Australia v Prince [2011] WASCA 22 (Prince).
[8] The State of Western Australia v PJW [2015] WASCA 113.
[9] Mills v The State of Western Australia [No 2] [2017] WASCA 52.
[10] Headley v The State of Western Australia [2018] WASCA 37.
[11] Coutts v The State of Western Australia [2023] WASCA 38 (Coutts).
[12] MAS v The State of Western Australia [2012] WASCA 36 (MAS).
[13] ARK v The State of Western Australia [2014] WASCA 45 (ARK).
[14] JJR v The State of Western Australia [2018] WASCA 51 (JJR).
[15] AIM v The State of Western Australia [2014] WASCA 155 (AIM).
[16] CJF v The State of Western Australia [2012] WASCA 69 (CJF).
[17] KSN v The State of Western Australia [2017] WASCA 156 (KSN).
[18] SG v The State of Western Australia [2013] WASCA 236 (SG).
A number of those previous decisions, as counsel for the appellant properly accepted, concerned sentences imposed by this Court more than 10 years ago. In Prince and FJG, for example, this Court imposed total effective sentences following State appeals of 8 years and 6 months imprisonment and 10 years and 6 months imprisonment, respectively. Those cases involved offending that was in a number of respects more serious than in the present case.
Prince, for example, concerned offending on the offender's granddaughter, on five separate occasions over a 14‑month period. While the occasions of offending were fewer and the period of offending was shorter than in the present case, the offending in Prince included a number of serious examples of penile/anal penetration and fellatio, together with an additional element of perversion (being the filming of the offending conduct).
Similarly, in FJG the offender was sentenced for 14 offences in relation to offences against his two daughters. The offending occurred over a long period of time and included acts accompanied by additional violence and humiliation. As in the present case, the offender in FJG pleaded guilty to some, but not all, of the offending, although the offender's advanced age also afforded him some leniency.
Considered in isolation Prince and FJG might be thought to suggest that the total effective sentence in the present case was disproportionate to the overall offending, particularly Prince, in which this Court imposed a total effective sentence of 8 years and 6 months imprisonment. FJG is a more difficult comparison, given that, while there were two victims, there was also mitigation that was not present in this case. The total effective sentence in FJG was also marginally higher than in the present case.
Prince and FJG, however, were decided in 2011 and 2012, respectively. It may reasonably be observed that sentences for child sexual offending have firmed up since that time. Indeed, in The State of Western Australia v CGT,[19] this Court observed that Prince must now be regarded as 'an outlier'.
[19] The State of Western Australia v CGT [2018] WASCA 226 [65] (Buss P, Beech JA & Hall J).
Of more use as a yardstick in the present case, as the appellant submitted, is the review of sentences imposed, after trial, in Coutts.[20] In each of the cases reviewed by the Court in Coutts (namely, MAS, ARK, JJR, AIM, CJF, KSN and SG), the total effective sentence was 12 years imprisonment. Those cases all had features that were more serious than the present case, and there could be little doubt that, had the learned sentencing judge in the present case imposed a sentence of 12 years imprisonment it could readily be concluded that the sentence would have failed to reflect the broad consistency that the law requires.
[20] Coutts [94] (Mazza, Beech & Hall JJA).
The total effective sentence in the present case, however, was two years less than in each of those cases reviewed by the Court in Coutts. In those circumstances, in our view, it is far more difficult to reach the conclusion that the offending in each of those cases was of such greater severity than that in the present case that the sentence of 10 years imposed on the appellant in this case is such as to manifest implied error.
For example, of those cases reviewed in Coutts, the decision most clearly comparable to the present case, in our view, is that in ARK. In ARK the offending was against a single victim (the offender's step‑daughter) and occurred over a similar time period (four years), although the victim in that case was older than the victim in the present case (she being 11 to 15 years of age). The offending included nine convictions of sexual penetration, compared with three convictions in the present case, but in both cases the offending was reflective of a broader course of sexual abuse. The overall criminality in ARK was not so dissimilar to the overall criminality in the present case as to suggest that a difference in sentence of two years imprisonment was so inadequate as to manifest error in the present case.
In addition, the Court in ARK refused leave to appeal against the sentence of 12 years imprisonment. That total effective sentence was therefore not even arguably disproportionate to the overall criminality. Where a sentence is not even arguably excessive, it provides little assistance as a marker of the upper limits of a proper exercise of discretion.[21]
[21] Searle v The State of Western Australia [2023] WASCA 129 [54] (Beech & Hall JJA, Lundberg J).
The other cases reviewed by the Court in Coutts certainly suggest that the total effective sentence in the present case was severe, and at the limit of sentences customarily imposed for offences of this type. Nevertheless, in our view the total effective sentence imposed on the appellant was broadly consistent with sentences customarily imposed for this type of offending.
In that regard, as the learned sentencing judge concluded, there were a number of aggravating factors that attended the appellant's offending. Count 8, in particular, was a very serious offence of its type, involving physical force to overcome the victim's resistance. Indeed, the offending as a whole was committed despite the victim's repeated protest and was, as the learned sentencing judge recognised, callously indifferent to the victim's wishes and had a profound and pervasive effect on her.
It was appropriate, therefore, that there be accumulation of a number of the sentences to recognise the variety of the offending, the separate occasions upon which it occurred, and the period of time over which the appellant abused the victim. To have accumulated the sentences for three of the 13 offences was a sound exercise of sentencing discretion.
The appellant's guilty pleas and self-report
A particular matter developed by the appellant in submissions in the present case was the contention that the total effective sentence failed to properly reflect an appropriate discount for the fact that, not only did the appellant plead guilty to counts 1 to 4 and counts 11 to 14, but that he, in effect, voluntarily disclosed that offending in his interview with police in circumstances in which, as the learned sentencing judge recognised, 'but for [his admissions], [he] would not have been dealt with for those matters at all'.[22]
[22] WAB 77.
The appellant submitted that the mitigation for the appellant's voluntary self-report was not reflected in the total effective sentence, and that 'it can be implied, effectively, there was no reflection of the fact that [the appellant] pleaded guilty to two thirds of what he was convicted of'.[23]
[23] Appeal ts 6.
Dealing first with the discount for the guilty pleas, there can be no doubt that, as a matter of principle, the mitigatory effect of pleas of guilty must be reflected, not only in the individual sentences, but in the total effective sentence.[24] In our view, however, the discount for the guilty pleas to counts 1 to 4 and counts 11 to 14 was properly reflected in the total effective sentence.
[24] LYN v The State of Western Australia [2019] WASCA 45 (LYN) [51] (Mazza, Mitchell & Beech JJA).
This can be illustrated by the structure of the sentence imposed by the learned sentencing judge. Of the 13 offences for which the appellant was sentenced, cumulative sentences were ordered in relation to three of them: count 8 (the head sentence), count 5 and count 1. All of the other sentences were ordered to be served concurrently. Counts 5 and 8 were both offences of sexual penetration that occurred on different occasions and which involved different forms of sexual penetration. They were the most serious of the offences for which the appellant was convicted. The only other cumulative sentence ordered by the learned sentencing judge was for count 1. It was appropriate, in all of the circumstances, that the offending the subject of counts 1 to 4 and counts 11 to 14 be the subject of some accumulation. In particular, counts 1 to 4 were all committed in a different timeframe to the other offences and were the only convictions for offending conduct that occurred when the victim was between 8 to 10 years of age.
The accumulation of the sentence for count 1, which had itself been discounted by 25% for the plea of guilty, meant that the total effective sentence was itself reduced to the extent of the discount for that offence. That is, the accumulation of the sentence for the offending the subject of count 1, absent the 25% discount, would have led to a total effective sentence that was, to that extent, greater.
Nevertheless, it was inevitable that the total effective sentence for all of the offending in this case would be substantially greater than would have been the case if the appellant had pleaded guilty to all of the offences for which he was convicted. As this Court observed in LYN, the public interest in avoiding the risk of further trauma and psychological harm to the victims of sexual offending against children is of such significance as to justify substantial discounts for pleas of guilty in cases where that occurs.[25]
[25] MHE [6] (Quinlan CJ), citing LYN [51] (Mazza, Mitchell & Beech JJA).
In LYN the Court said:[26]
It was important that the mitigating effect of the pleas of guilty be reflected, not only in the individual sentences, but in the total effective sentence. That is particularly so in a case involving sexual offending against child complainants. The process of giving evidence of such offences is often re-traumatising and damaging for the victims. Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little incentive for an offender to plead guilty. The absence of such an incentive will increase the number of victims who are exposed to the risk of further psychological harm through the requirement for them to participate in the trial process. (citations omitted)
[26] LYN [51] (Mazza, Mitchell & Beech JJA).
In a case such as the present, where the appellant did not plead guilty to the most serious of the offences for which he was convicted, and the victim was required to give evidence and be cross-examined, the impact of the guilty pleas will necessarily carry less weight in determining the appropriate total effective sentence. The risk of further trauma and psychological harm to the victim, in such a case, cannot be said to have been avoided.
In this regard, Mazza JA's observation in relation to the respondent in FJG is apposite to the present case:[27]
The respondent's partial pleas of guilty must be accorded mitigatory weight. But the weight to be given is limited. The pleas did not obviate the need for the complainants to testify and were entered on the basis that they were the extent of the respondent's offending, a basis which, in the light of his convictions on the other charges, was untrue.
[27] FJG [65] (Mazza JA; McLure P & Buss JA agreeing).
In relation to the appellant's 'self-report' of the offences constituting counts 1 to 4 and counts 11 to 14, in our view, it is clear that the learned sentencing judge was aware of, and took into account, the mitigatory effect of such a self-report. The appellant did not suggest otherwise. Her Honour referred to the fact that 'but for [his admissions], [the appellant] would not have been dealt with for those matters at all'[28] in concluding that a 25% discount was appropriate for the pleas of guilty and her Honour referred to his admissions in the context of finding that the appellant had some remorse.
[28] WAB 77.
The weight to be attached to the self-report was, however, a matter for the learned sentencing judge.
The legal principles in relation to the voluntary disclosure of offences were summarised by this Court in Hill v The State of Western Australia:[29]
The relevant legal principles can be shortly stated. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and his or her guilt. Such a confession may well not be motivated by fear of discovery or acceptance of the likelihood of proof of guilt, and will often exhibit the offender's remorse and contrition: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113]; JWD v The State of Western Australia [2013] WASCA 233 [45]. When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to have come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] ‑ [15]; R v Ellis (1986) 6 NSWLR 603, 604; Schriever v The State of Western Australia [2008] WASCA 133 [22]. How significant it is in the sentencing process depends upon the facts and circumstances of the case: Ryan [15].
[29] Hill v The State of Western Australia [2014] WASCA 150 (Hill) [33] (Buss, Newnes & Mazza JJA).
As these principles reveal, the weight to be accorded to a self‑report will be different depending upon the facts and circumstances of each particular case.
In some cases, for example, the 'self-report' might be entirely spontaneous and unbidden, in the sense that it is unprompted by any complaint or other external cue, as in a case where an offender reports themselves to the authorities entirely at the prompting of their own conscience. Similarly, the 'self-report' might include all of the conduct for which the offender is ultimately convicted and reflect the full seriousness of that conduct, so as to demonstrate a high degree of remorse and contrition. In Ryan v The Queen, for example, the voluntary disclosure of additional victims was said to show the offender's 'desire to make a complete disclosure of his conduct'.[30] In such cases, the utilitarian benefit of the self-report (in revealing and leading to the punishment of criminal conduct) and the remorse demonstrated by the offender by the report, may be significant indeed, and justify a very significant mitigatory reduction in the total effective sentence.
[30] Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [8] (McHugh J).
Indeed, in all of the previous cases referred to in Hill, and in the cases that have followed it,[31] the offender had pleaded guilty to all of the offences for which they were sentenced, including, but not limited to, the offences that they had voluntarily disclosed. In Hill itself, the disclosure carried little weight. Indeed, notwithstanding that there had been an express error in Hill, the Court in that case concluded that the disclosure did not occur out of a sense of remorse or contrition, or a subjective acceptance of responsibility and a subjective willingness to facilitate the course of justice. The Court therefore dismissed the appeal on the basis that no different sentence should have been imposed.[32]
[31] See Roberts v The State of Western Australia [2014] WASCA 239; Atkinson v The State of Western Australia [2017] WASCA 154; Menmuir v The State of Western Australia [2018] WASCA 13 and The State of Western Australia v BKJ [2018] WASCA 136.
[32] Hill [38] (Buss, Newnes & Mazza JJA).
The present case, however, is unlike any of these previous cases. It is apparent from the appellant's interview that, prior to the interview, the appellant had been arrested on suspicion of four counts of sexual penetration of the victim and five counts of indecent dealing with the victim. The appellant's statement that 'I did four indecent dealings with myself and her over three years' was, therefore, not unbidden or unprompted; it was made in circumstances in which the appellant knew that there was a complaint of five counts of indecent dealing and before the detail of those complaints was put to him. In addition, the appellant's admission of 'four indecent dealings' was made immediately after, and in the context of, a denial of any 'penetration', a denial which the appellant maintained at trial. This case may therefore be distinguished from all of the cases referred to in Hill, and in the cases that have followed it, in which the offender demonstrated a desire to make a complete disclosure of their conduct, together with the attendant benefits that would flow from such a disclosure.
In that context, while the 'self-report' and admission of 'four indecent dealings' was, as the learned sentencing judge found, to the appellant's credit and demonstrated some remorse, that credit was quite limited indeed. In light of the appellant's conviction for three counts of sexual penetration, it must be concluded that in his 'self-report' of the less serious type of offences for which he had been arrested, the appellant significantly and deliberately 'downplayed' the extent of his sexual abuse of the victim. Whether that was for strategic reasons (that is, as a form of 'damage control'), due to embarrassment or some other reason, it is clear the appellant's 'self-report' was neither entirely truthful nor was it fulsome.
In those circumstances, and as the learned sentencing judge recognised, neither the utilitarian benefit of the self-report nor the remorse demonstrated by it, could be said to be high. As to the utilitarian benefit, while the self-report enabled the punishment of offences which might otherwise not have come to light, it did not obviate the need for the victim to give evidence or produce a significant saving of public resources. As to the appellant's personal circumstances, the self-report reflected limited remorse and regard for the interests of the victim.
We are not satisfied that the learned sentencing judge failed to reflect the limited additional credit for the appellant's self-report in the total sentence that she imposed. As we have said, the learned sentencing judge gave the maximum discount for the pleas of guilty in relation to all of the offences that the appellant disclosed. In addition, as the structure of the sentence imposed by the learned sentencing judge also reveals, the total effective sentence was increased by the accumulation of only one of those offences (count 1). The sentences for all of the other offences the subject of a voluntary disclosure were ordered to be served concurrently, notwithstanding that they related to four separate incidents that were committed over a span of approximately three years.
In all of the circumstances we cannot infer any error of principle on the part of the learned sentencing judge.
Conclusion
As we have said, the total effective sentence imposed by the learned sentencing judge was severe, and at the upper limit of sentences customarily imposed for offending of its type. It was reasonably arguable that the total effective sentence was disproportionate to the appellant's overall criminality. For that reason, we would grant leave to appeal on the sole ground of appeal.
In the end, however, taking into account the maximum penalties for the offences, the circumstances of the offending, the appellant's pleas of guilty to some of the offences, his personal circumstances and all relevant sentencing principles, in our view the total effective sentence does not reach, although it approaches, a length that can properly be characterised as unreasonable or plainly unjust.
For these reasons we would order that:
(a)leave to appeal on the ground of appeal is granted; and
(b)the appeal is dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MJM
Research Associate to the Hon Chief Justice Quinlan
24 APRIL 2024
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