JWD v The State of Western Australia
[2013] WASCA 233
•7 OCTOBER 2013
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | JWD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 233 |
| CORAM | : NEWNES JA |
MAZZA JA
HALL J
| HEARD | : | 2 SEPTEMBER 2013 |
| DELIVERED | : | 7 OCTOBER 2013 |
| FILE NO/S | : | CACR 296 of 2012 |
| BETWEEN | : JWD |
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : BIRMINGHAM DCJ | ||
| File No |
| ||
| Catchwords: |
Criminal law - Appeal against sentence - Sexual offences against lineal relative - Committed when appellant youthful - Voluntary disclosure of offending - Totality principle - Whether total effective sentence disproportionate to total criminality and having regard to disclosure and other mitigating factors
[2013] WASCA 233
Legislation:
Nil
Result:
Appeal allowed 8, 9, 10 and 11 and in lieu thereof imposing sentences of 2 years' imprisonment on each count with the sentences on counts 1 and 9 to be served cumulatively and all other sentences to be served concurrently. The total effective sentence being one of 4 years' imprisonment. The appellant to be eligible for parole and the sentence to be backdated to commence on 22 September 2012.
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Gabriel |
| Respondent | : | Mr J Scholz |
Solicitors:
| Appellant | : | Stephen Gabriel |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Bell v The Queen [2001] WASCA 40
ERA v The State of Western Australia [2013] WASCA 163
Forkin v The State of Western Australia [2013] WASCA 51
KS v The State of Western Australia [2011] WASCA 85
LJP v The State of Western Australia [2010] WASCA 85
MMC v The State of Western Australia [2012] WASCA 187
R v Ellis (1986) 6 NSWLR 603
RMS v The State of Western Australia [2010] WASCA 76
Roffey v The State of Western Australia [2007] WASCA 246
[2013] WASCA 233
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Schriever v The State of Western Australia [2008] WASCA 133
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
The State of Western Australia v FJG [2012] WASCA 206
VIM v The State of Western Australia [2005] WASCA 233
[2013] WASCA 233
NEWNES JA
MAZZA JA
HALL J
NEWNES JA: I agree with Hall J.
MAZZA JA: I agree with Hall J.
HALL J: This is an appeal against sentence.
4 On 25 September 2012, the appellant pleaded guilty to 11 sexual
offences committed between 1996 and 2001 against his younger half-brother. These offences consisted of seven counts of sexual penetration of a lineal relative, being a child, contrary to s 329(2) of the Criminal Code (WA) and four counts of indecent dealing with a lineal relative, being a child, contrary to s 329(4) of the Criminal Code. All but the last three offences of sexual penetration occurred when the complainant was under the age of 16 years and attracted higher maximum penalties: s 329(9) and s 329(10) of the Criminal Code.
5 On 2 October 2012, the appellant was sentenced to a total effective
sentence of 6 years' imprisonment. He was made eligible for parole. His sentence was not backdated to take into account 10 days spent in custody prior to being sentenced. The individual sentences are set out in the following table.
| Count | Date | Offence | Max | Sentence |
| Penalty | ||||
| 1 | On a date unknown | Sexual penetration | 20 years | 3 years' |
| between 12/2/96 and | of child under 16 - | imprisonment | ||
| 1/1/97 | s 329(2) |
| 2 | On a date unknown | Indecently | dealt | 10 years | 9 months |
between 12/2/96 and with child under 16 concurrent 1/1/97 - s 329(4)
| 3 | On a date unknown | Indecently | dealt | 10 years | 9 months |
between 31/1/99 and with child under 16 concurrent 1/4/99 - s 329(4)
| 4 | On a date unknown | Indecently | dealt | 10 years | 18 months |
between 31/1/99 and with child under 16 concurrent 1/4/99 - s 329(4)
| 5 | On a date unknown | Sexual penetration | 20 years | 3 years |
| between 31/1/99 and | of child under 16 - | concurrent | ||
| 1/4/99 | s 329(2) |
| 6 | On a date unknown | Indecently | dealt | 10 years | 9 months |
between 31/1/99 and with child under 16 concurrent 1/4/99 - s 329(4)
| 7 | On a date unknown | Sexual penetration | 20 years | 3 years |
between 31/12/99 of child under 16 - concurrent and 3/4/2000 s 329(2)
| 8 | On a date unknown | Sexual penetration | 20 years | 3 years |
between 31/12/99 of child under 16 - concurrent and 3/4/2000 s 329(2)
| 9 | On a date unknown | Sexual penetration | 10 years | 3 years |
| between 2/4/00 and | of child - s 329(2) | cumulative | ||
| 1/1/01 | ||||
| 10 | On a date unknown | Sexual penetration | 10 years | 3 years |
| between 2/4/00 and | of child - s 329(2) | concurrent | ||
| 1/1/01 | ||||
| 11 | On a date unknown | Sexual penetration | 10 years | 3 years |
| between 2/4/00 and | of child - s 329(2) | concurrent | ||
| 1/1/01 |
6 In essence the appellant's grounds are that the total effective sentence
breaches the totality principle because it is disproportionate to the total criminality having regard to all of the circumstances, including those personal to the appellant. The appellant places particular emphasis on two factors that were relevant to sentence. The first is that the appellant made a voluntary disclosure of the offences. The second is that in the 12 years between the commission of the offences and when the appellant came to be sentenced he had taken significant steps towards rehabilitation. The appellant submitted that the sentencing judge appeared to have
[2013] WASCA 233
HALL J
misunderstood the factual circumstances in relation to these two factors and when taken into account they should have resulted in a sentence significantly less than that imposed.
The facts
7 Between 1996 and 2001 the appellant committed various sexual acts
against the complainant, his biological half-brother. The complainant was six years younger than the appellant. The offending commenced when the complainant was 12 years of age and continued until he was 16. It was accepted that the offences on the indictment were representative of a course of conduct by the appellant.
On a date unknown between 12 February 1996 and 1 January 1997 when the complainant was 12 years old and the appellant was 18 they went to their grandmother's in Spearwood with their mother. The appellant and the complainant went for a walk to a nearby Chicken Treat restaurant in order to buy food. On the way the appellant asked the complainant to suck the appellant's penis. The appellant offered the complainant money and the complainant agreed if the appellant bought him some chips. They then went to a nearby school where the appellant removed his pants and laid down before asking the complainant to suck his penis. The complainant did as he was asked for some minutes before the appellant told the complainant that he was doing it wrong and then urinated in the complainant's mouth (count 1). The appellant then proceeded to masturbate in the presence of the complainant. This continued until the appellant ejaculated (count 2).
9 On an unknown date between 31 January 1999 and 1 April 1999 the
complainant rode his bicycle to an address in Balga where the appellant was then living. At this time the complainant was 15 years old and the appellant was 21. Whilst the complainant was at the house the appellant had a shower. He came out of the shower and began to towel himself off in front of the complainant. He then directed the complainant to come into the bedroom where he got on to the bed and started to masturbate in front of the complainant (count 3). The appellant then asked the complainant to play with the appellant's penis. The complainant walked over and started to masturbate the appellant. The appellant did not ejaculate on this occasion (count 4). The appellant then told the complainant that he, the appellant, needed to have another shower. He went to the bathroom and asked the complainant to come with him. The complainant did so, taking off his clothes and getting into the shower. Whilst in the shower the appellant told the complainant that he wanted to
[2013] WASCA 233
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suck the complainant's penis. He then dropped to the floor of the shower
and sucked the complainant's penis for a number of minutes (count 5).10 On the evening of the same day the appellant visited the
complainant's home in Marangaroo. The appellant stayed the night at the house and shared a bedroom with the complainant. He asked the complainant to suck his penis however the complainant refused. He then began to masturbate in front of the complainant until he ejaculated (count 6).
11 On another date unknown between 31 December 1999 and 3 April
2000 the appellant was again staying at the complainant's house in Marangaroo. The complainant was 15 years old and the appellant was 21. During the night the complainant, the appellant and two other brothers were together in the lounge room. The other brothers fell asleep and the appellant and the complainant then went outside to a car in order to smoke cannabis. The appellant then directed the complainant to take off his pants, which the complainant did. The appellant then began to suck the complainant's penis. He then asked the complainant whether it 'turned him on' and the complainant said that it did not and that he did not like it. The appellant then desisted (count 7).
12 On another date between 31 December 1999 and 3 April 2000 the
appellant picked up the complainant and took him to the flat in South Perth where the appellant was then living. At this time the complainant was 15 years old and the appellant was 21. They went into the appellant's bedroom and the appellant told the complainant to pull his pants down because the appellant wanted to suck the complainant's penis. The complainant took his pants off and the appellant began to suck the complainant's penis. After a few minutes the complainant told the appellant to get off as the complainant did not like it. The appellant then desisted and lay down beside the complainant on the bed (count 8).
13 On an unknown date between 2 April 2000 and 1 January 2001 the
complainant went to visit the appellant at the appellant's South Perth apartment. At this time the complainant was 16 years old and the appellant was 22. They drank beer together and watched a movie. The appellant told the complainant, 'I'm going to see how many times I can make you come tonight'. The appellant then took off his clothes and told the complainant to lie on the floor which he did, removing his pants. The appellant then positioned himself above the complainant and sat down on top of him guiding the complainant's penis into the appellant's anus. Anal penetration continued for a short while before the complainant told the
[2013] WASCA 233
HALL J
appellant that he could not do it any longer (count 9). The appellant then got off the complainant and began to lick the complainant's anus. He inserted his tongue into the complainant's anus past the sphincter muscle (count 10). The appellant then got onto his knees and bent over and asked the complainant to place his penis inside the appellant's anus. The complainant found a condom, placed it on his penis and inserted his penis into the appellant's anus (count 11).
Voluntary disclosure
14 On 17 November 2011 the appellant presented himself at the
Rockingham detectives' office and participated in a video record of interview. There was no suggestion that he had been requested to attend, rather he did so of his own initiative. He told police that his decision had followed several nights in which he had not been home and had camped out in the bush. The tenor and content of the interview was that the appellant had been driven by his conscience to make a confession to the police.
15 During the interview he admitted to engaging in sexual conduct with
his brothers, including the complainant. Whilst the admissions were of a general nature and the appellant was unable to recall specific incidents, he subsequently accepted his guilt in respect of all of the charges.
16 The information before the sentencing judge was that the disclosure
of the offending by the appellant to the police was entirely voluntary. The complainant had made a complaint to the police in 2010. However, defence counsel submitted, and it was not disputed, that this complaint had been withdrawn. It was also not disputed that the appellant did not know of the complaint at the time that he made his confession to the police.
The psychiatric report, psychological report and pre-sentence report
17 The sentencing judge received a pre-sentence report, a psychological
report and a psychiatrist's report in respect of the appellant. The reports revealed that the appellant had a chaotic childhood. His mother had remarried when the appellant was a young child and he had very limited contact with his biological father. His step-father was a violent alcoholic who had physically abused the appellant and his mother. Beatings had occurred regularly and to the point of the appellant losing consciousness. The appellant ran away from home on a regular basis.
[2013] WASCA 233
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18 The appellant's mother had four further children with his step-father.
One of these four younger half-brothers was the complainant. The appellant said that when he was about 10 years of age a similarly aged female cousin started visiting the family and introduced him and his half-brothers to sexual play. This involved kissing and performing oral sex on one another.
19 The appellant's schooling was interrupted and he attended four high
schools within two years. He was withdrawn from the first one by his parents when the school became aware that he was the victim of domestic violence. He was subsequently removed by the Department of Child Protection and placed into the care of an aunt. He struggled with his education and failed to pass Year 10. He then went to live with his grandmother but she found it difficult to cope and as a result he began to live independently at the age of 15. He then spent long periods living on the streets, sometimes supporting himself through prostitution.
20 The appellant reported first using alcohol at the age of 13. He
subsequently developed a serious alcohol dependence. He started smoking cannabis at approximately 14 or 15 years of age and this also escalated to daily use, which has continued for most of his life. He was an intravenous heroin user during his late teens and also used Ecstasy, amphetamines, LSD and various prescription medications during his 20s. This poly-substance use ceased about ten years ago and in more recent times alcohol has been his substance of choice, though he has dramatically reduced his reliance upon it.
21 For the last seven years the appellant has been in a stable
relationship. His partner is schizophrenic and the appellant acts as his carer, though they are mutually supportive. Both the appellant and his partner have support from the Peel, Rockingham and Kwinana Mental Health Service. This included a social worker, Ms Eve Coker, who had been working with the appellant for approximately two years. During that period the appellant had several admissions to psychiatric hospitals. He was currently prescribed anti-depressant and anti-anxiolytic medications. Ms Coker had expressed concerns about the appellant's ability to manage in a custodial environment. She said that he may experience strong and overwhelming emotions that he may find difficult to control and would require stringent monitoring given his vulnerability towards self-harm and suicidal ideation.
22 The psychologist concluded that the appellant's risk of re-offending
was in the moderate to low category. The psychologist expressed the
[2013] WASCA 233
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view that if the appellant maintained contact with Community Mental Health Services, maintained a healthy relationship and engaged with appropriate psychological services his risk of re-offending in a sexual manner would be better reflected as being in the low risk category.
23 The psychiatrist, Dr Mark Hall, concluded that the appellant had
longstanding emotional instability, distress intolerance, chronically depressed mood, a negative and unstable sense of self, recurrent deliberate self-harm, abandonment fears, impulsivity and anger management that were all consistent with an established diagnosis of borderline personality disorder. This condition had occurred in the background of a chaotic and dysfunctional family of origin and a childhood social environment with extensive physical abuse and victimisation from a young age. This was compounded by childhood sexual abuse, abandonment, early homelessness and substance abuse. Dr Hall said that although it could be inferred that all of these factors had played some part in the offending it was not possible to give a reliable opinion as to the appellant's mental state at the time given his inability to give a useful subjective account of what occurred.
24 Dr Hall stated that the appellant is chronically and significantly
impaired due to his personality disorder and presents with ongoing features of emotional instability, disturbance of self-image, inability to self-regulate and suicidal ideation. He requires ongoing intensive case management as well as psychological therapy with a view to improving his emotional processing and his tolerance of distress as well as addressing the core beliefs about himself and his environment that have become entrenched over his lifetime. Such beliefs were commonly seen in abused individuals with consequent damaged personalities. Dr Hall stated that the appellant required long term psychological interventions specially designed for the management of borderline personality disorder. These were not currently available within the prison system.
25 When interviewed for the pre-sentence report the appellant suggested
that he had pleaded guilty to the charges in order to protect the complainant. He said that he did not want to put the complainant on the witness stand and call him a liar. He suggested that the complainant may seek criminal injuries compensation. He did however accept that sexual acts, including oral sex, had occurred between he and his siblings.
Sentencing submissions
26 Counsel who appeared for the appellant in the District Court
confirmed that the facts were accepted. The sentencing judge raised the
[2013] WASCA 233
HALL J
pre-sentence report and counsel said that though the appellant had no
recollection of some of the events he did not dispute them.27 As to the passage of time, the sentencing judge noted that delay
would only attract a discount where there was real progress towards rehabilitation in the intervening period. His Honour questioned whether there had been any rehabilitation in this case. In this context, counsel for the appellant called Ms Coker, the social worker who had been working with the appellant for the previous two years.
28 Ms Coker said that she had started working with the appellant when
he presented voluntarily to the Peel Mental Health Services suffering from depression and severe stress and emotional difficulty. He had initially attended weekly in order to work through his childhood and early adulthood experiences. She confirmed that the appellant had been diagnosed with a personality disorder and depression and was currently on medication for those conditions. She said that the appellant initially struggled to talk about his childhood but that he had done so. She said that this involved not only talking about his own abuse and neglect but also taking responsibility for things that he had done. She said that he had made significant improvements over the two years in this regard.
29 Ms Coker said that in the last three years the appellant had been able
to establish a secure home with his partner, with whom he had previously been living on the streets. In the past both the appellant and his partner had numerous admissions to psychiatric hospitals but that had now stopped.
30 Ms Coker said that the major improvement was that the appellant
was now able to talk about what happened when he was a child. She said:
I think up until starting working with me he wasn't able to do that, and that's the first step really, is being able to talk about it honestly and openly and take responsibility for his part in what was a fairly horrific childhood and early adult hood. I think that's borne out by the fact that [the appellant] actually walked into the police station himself. I wasn't aware that he was going to attend the police station on that day. He took it upon himself to go to the police station, and my understanding is that at that time there were no charges. He was told by the police that no charges had been laid against him. So he decided, and obviously this has been playing on his mind for many, many years, he decided to go into the police station on that day and say what he said (ts 25/9/12, page 40).
31 Ms Coker said that in her view the appellant was 'incredibly
remorseful' about what happened. She said that she was in no doubt that
[2013] WASCA 233
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the appellant deeply regretted what had occurred and she considered that pleading guilty to the charges was his way of saying to the world, to his partner and to his family that he wanted the matters dealt with so that he could move on with his life.
32 In response to the evidence of Ms Coker, the sentencing judge said
that there was some progress towards rehabilitation but that he doubted its value 'because it doesn't appear to have been addressing any sex offender aspects'. His Honour said, 'It was dealing with his position, not his position vis à vis his offending against his brothers'. The suggestion seemed to be that, notwithstanding the evidence of Ms Coker, the appellant's efforts had been directed to dealing with past experiences in which he had been a victim rather than those where he was a perpetrator.
33 The prosecutor submitted that the only appropriate sentence was a
substantial term of immediate imprisonment. This was said to be due to the serious nature of the offences, that they involved several distinct incidents over a prolonged period of time and that the charges were representative in nature. The prosecutor noted that the complainant's victim impact statement referred to how he had felt controlled by the appellant and grieved for the loss of his innocence. The complainant had suffered both short and long term physical and psychological consequences as a result of the offences.
34 The prosecutor accepted that there were three principle factors in
mitigation. These were the early plea of guilty, the voluntary disclosure of the offences and the steps taken towards rehabilitation. It was accepted that when the appellant had voluntarily disclosed the offences on 17 November 2011 he was unaware that the complainant had spoken to the police a year earlier. It was also accepted that there had been some steps taken towards rehabilitation.
Sentencing remarks
35 After giving an account of the facts of the offending the sentencing
judge noted that one of the aggravating features was that the appellant's relationship to the complainant as the latter's older brother gave him an opportunity to influence the complainant. This was a position which he used to facilitate the commission of the offences. His Honour referred to this as a power relationship and as a breach of trust. He noted that the affect upon the complainant had been profound, including contracting a sexually transmitted disease and psychological effects.
[2013] WASCA 233
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As regards the voluntary disclosure, his Honour said:
It is to your great credit that when your brother complained to the police and you were questioned about this you, in fact, went to the police and voluntarily made a statement. You weren't charged at the time and no charge had issued but no doubt it was in the wind.
That is to your credit and it shows a degree of remorse that might perhaps otherwise be missing, particularly when one has regard to the pre-sentence report where you were recorded as suggesting that you entered the plea of guilty to protect your brother from giving evidence because he suffers from schizophrenia and you didn't want to put him on the stand, but you didn't believe his - where he mightn't be believed.
You thought that the purpose for him making the complaint was that your brother had raised this issue in a tumultuous family environment where he'd been exposed to serious sexual dysfunction and that it was really, in essence - his motive for coming forward was for a criminal compensation claim. That sort of militates against a clear expression of remorse.
I've had the benefit of the pre-sentence report and of the psychological and psychiatric reports. That's no doubt that you were raised in a horrific family background which was described as chaotic and dysfunctional, and that those factors no doubt played a role in relation to this offending. As I've said, it was you who came to the police first as though you felt compelled to report your offending to the police (ts 2/10/12, page 6).
As regards rehabilitation, his Honour said:
What is noted, and I think important, is that you have taken some steps towards your rehabilitation. Now, whilst it wasn't rehabilitation in the sense of dealing with your sexual behaviour towards your brother, it was rehabilitation in relation to dealing with your issues generally.
I was provided by your counsel with a report from Ms Coker and I also had the benefit of hearing her give evidence in relation to the extent to which you have engaged in the Peel Adult Community Mental Health team and effectively taken some strong steps towards addressing your current issues and the issues that gave rise to this offending.
The evidence of Ms Coker helps me in deciding the extent to which I should give weight to aspects of personal deterrents [sic] in any sentence that I impose. I'm satisfied that given the steps you've taken towards rehabilitation over the past several years of your own volition the aspect of personal deterrents [sic] does not weigh as high as it might otherwise in a case such as this (ts 2/10/12, page 7).
[2013] WASCA 233
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Grounds of appeal
38 It is unnecessary to set out the grounds of appeal. The grounds
contain typographical errors and confuse the totality principle with the principle that an error may occur where an individual sentence is manifestly excessive. Ground 3 is not a ground at all, but a submission that in the event that the appeal is allowed a suspended sentence would be appropriate.
39 It became apparent on the hearing of the appeal that the essential
contention was that the total effective sentence of 6 years' imprisonment breached the first limb of the totality principle because it was not a proper reflection of the voluntary disclosure and of the efforts that the appellant had made towards his rehabilitation in the 12 year period that had elapsed since the last offence was committed.
Totality principle
40 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 relevant offences, viewed in their entirety and after having regard to the circumstances of the case, including those circumstances referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246.
41 An alleged breach of the totality principle does not rely on any
express error but that an error can be inferred because the end result is not one that could have been reached in the proper exercise of sentencing discretion. This requires consideration of all of the relevant sentencing factors to determine whether the sentence imposed was open in the circumstances.
42 It is well recognised that there is no tariff for sex offences 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 will depend upon the individual facts and circumstances having regard to the maximum penalty and all relevant sentencing considerations. Nonetheless, sexual offending against children will usually result in custodial sentences to be immediately served because the primary sentencing considerations are punishment of the offender and specific and general deterrence: MMC v The State of Western Australia [2012] WASCA 187 (Buss JA, Mazza JA agreeing).
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43 An extensive survey of sentences imposed in cases involving pleas of
guilty to multiple child sex offences between 1999 and 2005 was undertaken in VIM v The State of Western Australia [2005] WASCA 233. It was noted that there had been firming up of sentences involving sexual offences against children and that cumulation was to be expected where there was more than one complainant. See also the cases referred to in MMC at [58] and the more recent case of ERA v The State of Western Australia [2013] WASCA 163.
44 The total effective sentence imposed in this case is not inconsistent
with sentences imposed in other cases for like offending. All other things being equal that might suggest that the sentence in this case was within the appropriate range of discretion. However, voluntary disclosure and rehabilitation are significant mitigating factors that need to be taken into account.
Voluntary disclosure - relevant principles
45 An offender who confesses to a crime is generally to be treated more
leniently than one who does not. That is not to say that all admissions of guilt have the same value. The disclosure to the authorities of otherwise unknown offences can have significant weight. One important feature of such a disclosure is that it may evidence a genuine acceptance of responsibility and contrition on the part of the offender: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 [113] - [114] (Hayne J, in dissent in the outcome but similar comments were made by the majority). See also R v Ellis (1986) 6 NSWLR 603 and Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 (McHugh J [15] & Kirby J [92] - [95]).
46 In LJP v The State of Western Australia [2010] WASCA 85 the appellant was charged with five counts of indecently dealing with a child under the age of 13 years and one count of sexual penetration of the same child. While there was a range of relevant sentencing factors, one of the most significant in that case was that the appellant had made voluntary disclosure of a number of the offences. The appellant in that case was held to be entitled to a significant element of leniency on account of that voluntary disclosure in addition to any other discounts for the plea of guilty at the earliest opportunity and other mitigating factors. Reference was also made to Schriever v The State of Western Australia [2008] WASCA 133 in which a voluntary disclosure had also occurred which was said to be deserving of leniency [13] - 14] (Steytler P).
47 In RMS v The State of Western Australia [2010] WASCA 76 the appellant was contacted by police after a complaint had been made by his
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12-year-old daughter. During the interview admissions were made about additional offences that had not been the subject of the complaint. A significant discount for the voluntary disclosure was not reflected in the sentence imposed and the appeal was allowed for that reason.
48 In KS v The State of Western Australia [2011] WASCA 85 the appellant was interviewed following a complaint that alleged only one act of indecent dealing. When interviewed by the police the appellant immediately confessed to indecent dealing and provided details in respect of that offence that had not been revealed by the complainant. He then disclosed other acts including two incidents of sexual penetration. It was apparent from the interview that these were entirely voluntary disclosures born of the desire to completely confess the extent of the appellant's actions in regards to the complainant. The total effective sentence in that case of 4 years and 8 months did not incorporate an appropriate significant additional discount that ought to have been allowed for the voluntary disclosure and the sentence was reduced on appeal to one of 3 years' imprisonment.
Rehabilitation - relevant principles
49 Delay between commission of the offences and sentencing is not in
itself mitigatory: Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164. This principle has been applied in the context of sexual offences against children where a long delay is not uncommon: Bell v The Queen [2001] WASCA 40 and The State of Western Australia v FJG [2012] WASCA 206 [54] (Mazza JA, McLure P & Buss JA agreeing).
50 Delay may, however, have allowed an offender to engage in a
process of rehabilitation. It may be that personal deterrence is less significant in these circumstances. Other mitigating factors may also have emerged in the intervening period and may be taken into account: Scook [27] (McLure JA).
51 Rehabilitation may include treatment that focusses on the offending
behaviour, but it is not necessarily so confined. If the offending conduct was contributed to by behavioural, mental health or substance abuse issues then efforts to address these issues may be relevant because the risk of reoffending may thereby be reduced. Where rehabilitation is also coupled with acceptance of responsibility this is an important additional mitigating factor.
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Merits of the appeal
52 In most of the cases involving voluntary disclosure the offender has
disclosed additional offences beyond those that were the subject of a complaint made to the police. They have nonetheless occurred in the context of an existing investigation. The offenders in those cases received significant additional discounts on their sentences to reflect the value of their disclosures. The appellant's disclosure reflected even more favourably upon him because his approach to the police was self-initiated.
53 In the present case, the complainant made a complaint to the police
in 2010. For reasons unknown that complaint did not proceed to an investigation. The appellant was unaware of the 2010 complainant. He was to be sentenced on the basis that at the time he approached the police and made a voluntary disclosure of his offending he had no reason to believe that the complainant had previously spoken to the police. Whilst his admissions when interviewed were of a general nature he readily accepted his guilt when charges were preferred.
54 It is apparent from the interview that the appellant was motivated by
a genuine need to confess and to accept the consequences for his past conduct. This is consistent with his acceptance of responsibility for that conduct in the sessions conducted by Ms Coker. In these circumstances, the voluntary disclosure was an important mitigating factor deserving of a significant discount on the sentence that would otherwise be imposed. The voluntary disclosure reflected acceptance of responsibility, genuine remorse and resulted in offences coming to light that may otherwise have remained undealt with. There is public interest in recognising the value of such a disclosure.
55 It is apparent from the sentencing judge's sentencing remarks that he
misunderstood the relevant circumstances of the voluntary disclosure. He referred to the appellant being questioned as a result of the complainant speaking to the police. In fact there was no suggestion that the police had ever sought to speak to the appellant about the complaint. A year had elapsed between the complaint and the appellant attending at the Rockingham detectives' office. The undisputed information was that the complainant had withdrawn the complaint. His Honour said that whilst it was to the credit of the appellant that he had voluntarily made a statement, charges were 'in the wind'. This is incorrect. There was nothing to indicate that the police were intending to charge the appellant or that he had any reason to believe that charges were imminent when he made the voluntary disclosure.
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56 As regards rehabilitation, his Honour did acknowledge that the
appellant had made significant steps towards rehabilitation. However, with respect to his Honour, he appears to have down-played the significance of it because he considered that it was primarily directed towards dealing with past experiences in which the appellant had been a victim rather than a perpetrator. That is a characterisation that does not fairly reflect the evidence of Ms Coker or the circumstances in which the appellant made his voluntary disclosure to the police. Ms Coker's evidence was that the appellant's efforts had not only been directed to reaching an understanding of his past experiences but also accepting responsibility for them. The psychological and psychiatric reports also reflected that the appellant's efforts to address his past had reduced his risk of re-offending.
57 The appeal does not depend upon the existence of express errors.
However, his Honour's findings in respect of voluntary disclosure and rehabilitation support a conclusion that the total effective sentence does not adequately take these factors into account. There are, of course, other relevant factors. They include the seriousness of the offences, including the number and type of offences and the length of time over which they continued. Whether or not the appellant's relationship with the complainant could properly be described as one of trust, there was an age difference that required the appellant to act with greater responsibility and made the complainant more vulnerable. The age difference was not, however, as great as in some cases. It should also be acknowledged that the last three offences attracted a significantly lower maximum penalty to reflect the fact that the complainant was over the age of 16 years at the time that they occurred. Regard must also be had to the fact that at the time of the offences the appellant was aged between 18 and 22. His ability to make appropriate decisions was likely affected both by his youth and his familial experiences. There was also evidence that the appellant was at risk of being more adversely affected by imprisonment due to his mental health.
Conclusion and re-sentencing
58 Having regard to the voluntary disclosure, rehabilitation, guilty
pleas, mental health and youth at the time of the offending, the total effective sentence of 6 years was disproportionate and infringed the first limb of the totality principle. A sentence of that length does not appropriately reflect the exceptional circumstances that existed in this case. For those reasons, in my view, the appeal should be allowed.
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59 The appellant's counsel submitted that a suspended sentence is open.
Even taking into account the substantial mitigating factors in favour of the appellant, the offending in this case was objectively serious. It involved a number of distinct incidents spread over several years with an increasing level of seriousness. Even taking into account factors personal to the appellant, a suspended sentence would be inappropriate. Such a sentence would fail to adequately reflect the seriousness of the offences and the importance of general deterrence.
60 An allowance for totality will usually result in a lower sentence than
would be reached having regard to the offences individually. This can be achieved by ordering that sentences be served concurrently or by reducing individual terms. Some measure of accumulation was appropriate here to reflect that the offences occurred during separate incidents and over a lengthy period of time. In my view, the appropriate way to resentence the appellant, taking into account all of the relevant factors, is to reduce the terms on the sexual penetration offences.
61 I would allow the appeal and reduce the sentences of 3 years'
imprisonment on each of counts 1, 5, 7, 8, 9, 10 and 11 to 2 years' imprisonment. The remaining sentences are unaffected. I would order that the sentences on counts 1 and 9 be cumulative, with the other sentences to be served concurrently resulting in a total effective sentence of 4 years' imprisonment. That sentence includes a discount of 25% for the early plea of guilty: s 9AA Sentencing Act 1995 (WA), Forkin v The State of Western Australia [2013] WASCA 51.
62 The sentence imposed by the sentencing judge did not take into
account time spent in custody. It was accepted by the respondent that by the time the appellant was sentenced he had served 10 days in custody and that the sentence imposed should have been backdated to take this into account. There was no apparent reason why the sentence was not backdated and this appears to have been merely an oversight. Accordingly, the sentence should now be backdated to commence on 22 September 2012.
The orders I would make are as follows:
1. Appeal allowed.
2. Appellant re-sentenced by setting aside the sentences imposed on counts 1, 5, 7, 8, 9, 10 and 11 and in lieu thereof imposing sentences of 2 years' imprisonment on each count with the sentences on counts 1 and 9 to be served cumulatively and all
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other sentences to be served concurrently. The total effective sentence being one of 4 years' imprisonment. The appellant to be eligible for parole and the sentence to be backdated to commence on 22 September 2012.
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