KAT v The State of Western Australia
[2017] WASCA 11
•18 JANUARY 2017
KAT -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASCA 11 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:207/2015 | 1 AUGUST 2016 | |
| Coram: | BUSS P MAZZA JA CORBOY J | 18/01/17 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application to amend the grounds of appeal to add ground 3 granted Leave to appeal on ground 3 granted Leave to appeal on ground 2 refused Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | KAT THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sexual offences against child under the age of 13 years Appeal against sentence Appellant aged 68 years Total effective sentence of 4 years' imprisonment imposed Whether sentence imposed on single count of sexual penetration of a child under the age of 13 years manifestly excessive Whether trial judge erred in not stating the head sentence when applying a discount under s 9AA Sentencing Act 1995 (WA) Whether this court should direct sentencing judges that, as a matter of sentencing practice, they should expressly state the head sentence when applying s 9AA |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a), s 41(2), s 41(3) Criminal Code (WA), s 320(2), s 320(4) Sentencing Act 1995 (WA), s 8(2) (repealed), s 8(4), s 8(5), s 9AA, s 37A |
Case References: | Abbott v The State of Western Australia [2007] WASCA 105 Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 Beins v The State of Western Australia [No 2] [2014] WASCA 54 BGR v The State of Western Australia [2014] WASCA 82 C v The State of Western Australia [2006] WASCA 261 Chivers v The State of Western Australia [2005] WASCA 97 Chu v The State of Western Australia [2012] WASCA 135 Clarkson v The State of Western Australia [2006] WASCA 250 Fenton v The State of Western Australia [2015] WASCA 255 Forkin v The State of Western Australia [2013] WASCA 51 Fullgrabe v The State of Western Australia [2006] WASCA 138 HFM v The State of Western Australia [2012] WASCA 217 KC v The State of Western Australia [2008] WASCA 216 Kobeissi v The State of Western Australia [2016] WASCA 188 LJH v The State of Western Australia [2016] WASCA 155 LJP v The State of Western Australia [2010] WASCA 85 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 McLean v The State of Western Australia [2011] WASCA 60 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nannup v The State of Western Australia [2011] WASCA 257 Phan v The State of Western Australia [2016] WASCA 201 Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 Schriever v The State of Western Australia [2008] WASCA 133 Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386 The State of Western Australia v FJG [2012] WASCA 206 Thomas v The State of Western Australia [2014] WASCA 202 Williams v The State of Western Australia [2015] WASCA 16 Wilson v The State of Western Australia [2010] WASCA 82 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KAT -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 11 CORAM : BUSS P
- MAZZA JA
CORBOY J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND BUN 121 of 2014
Catchwords:
Criminal law - Sexual offences against child under the age of 13 years - Appeal against sentence - Appellant aged 68 years - Total effective sentence of 4 years' imprisonment imposed - Whether sentence imposed on single count of sexual penetration of a child under the age of 13 years manifestly excessive - Whether trial judge erred in not stating the head sentence when applying a discount under s 9AA Sentencing Act 1995 (WA) - Whether this court should direct sentencing judges that, as a matter of sentencing practice, they should expressly state the head sentence when applying s 9AA
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a), s 41(2), s 41(3)
Criminal Code (WA), s 320(2), s 320(4)
Sentencing Act 1995 (WA), s 8(2) (repealed), s 8(4), s 8(5), s 9AA, s 37A
Result:
Application to amend the grounds of appeal to add ground 3 granted
Leave to appeal on ground 3 granted
Leave to appeal on ground 2 refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr D S Hunter
Respondent : Mr B M Murray
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2007] WASCA 105
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Beins v The State of Western Australia [No 2] [2014] WASCA 54
BGR v The State of Western Australia [2014] WASCA 82
C v The State of Western Australia [2006] WASCA 261
Chivers v The State of Western Australia [2005] WASCA 97
Chu v The State of Western Australia [2012] WASCA 135
Clarkson v The State of Western Australia [2006] WASCA 250
Fenton v The State of Western Australia [2015] WASCA 255
Forkin v The State of Western Australia [2013] WASCA 51
Fullgrabe v The State of Western Australia [2006] WASCA 138
HFM v The State of Western Australia [2012] WASCA 217
KC v The State of Western Australia [2008] WASCA 216
Kobeissi v The State of Western Australia [2016] WASCA 188
LJH v The State of Western Australia [2016] WASCA 155
LJP v The State of Western Australia [2010] WASCA 85
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McLean v The State of Western Australia [2011] WASCA 60
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nannup v The State of Western Australia [2011] WASCA 257
Phan v The State of Western Australia [2016] WASCA 201
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Schriever v The State of Western Australia [2008] WASCA 133
Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386
The State of Western Australia v FJG [2012] WASCA 206
Thomas v The State of Western Australia [2014] WASCA 202
Williams v The State of Western Australia [2015] WASCA 16
Wilson v The State of Western Australia [2010] WASCA 82
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1 BUSS P: The appellant has appealed against sentence.
2 He was convicted, on his pleas of guilty in the District Court before O'Neal DCJ, of five counts in an indictment which alleged sexual offending against his step-granddaughter, C.
3 Count 1 alleged that on a date unknown between 24 December 2013 and 28 April 2014 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 Each of counts 2, 3 and 4 alleged that on another date unknown between 24 December 2013 and 28 April 2014, the appellant indecently dealt with C, a child under the age of 13 years, by touching her breasts, contrary to s 320(4) of the Code.
5 Count 5 alleged that on another date unknown between 24 December 2013 and 28 April 2014, the appellant indecently dealt with C, a child under the age of 13 years, by licking her buttocks, contrary to s 320(4) of the Code.
6 The sentencing judge imposed individual terms of immediate imprisonment as follows:
(a) count 1: 4 years;
(b) count 2: 1 year 2 months;
(c) count 3: 1 year 2 months;
(d) count 4: 1 year 2 months; and
(e) count 5: 1 year 6 months.
7 His Honour ordered that the sentences for counts 2, 3, 4 and 5 be served concurrently with each other and concurrently with the sentence for count 1. The total effective sentence was therefore 4 years' immediate imprisonment. A parole eligibility order was made.
The relevant facts and circumstances
8 The relevant facts and circumstances are set out in the reasons of Mazza JA.
The grounds of appeal
9 The appellant relies on three grounds of appeal.
10 Ground 1 alleges in effect that the sentence of 4 years' immediate imprisonment imposed for count 1 was manifestly excessive.
11 Ground 2 alleges in effect that, in imposing the sentence of 4 years' immediate imprisonment for count 1, the sentencing judge 'made an express error in failing to specify the head sentence, not detailing the length of the sentence after discounting 15% of the sentence to take into account the appellant's plea of guilty, before further reducing the sentence to take into account other mitigating factors, as is required by s 9AA of the Sentencing Act 1995'.
12 Ground 3 alleges in effect that the sentencing judge erred in finding that the 'enormous' age difference between the appellant and C was an aggravating factor.
The merits of ground 1
13 I agree with Mazza JA, for the reasons he gives, that ground 1 fails.
The merits of ground 2
14 I agree with Mazza JA, generally for the reasons he gives, that the sentencing judge did not make the express error alleged in ground 2. A sentencing judge will not make an error if he or she states or does not state the 'head sentence', as defined in s 9AA(1) of the Sentencing Act 1995 (WA), that he or she would have imposed.
15 I will, however, state my own reasons in relation to counsel for the appellant's submission that this court should 'direct or suggest to sentencing judges' that, as a matter of sentencing practice, they should expressly state the 'head sentence', as defined in s 9AA(1) of the Sentencing Act,that they would have imposed (appeal ts 10).
16 In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ explained that the task of a sentencing judge is to take account of all of the relevant sentencing factors and to arrive at 'a single result which takes due account of them all' [75]. That is the meaning of the statement that a sentencing judge's task is to arrive at an 'instinctive synthesis' [75]. That expression is used to make plain that a sentencing judge is required to reach a single sentence which balances many different and conflicting features [75].
17 In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, the High Court reviewed the debate concerning the 'instinctive synthesis', as opposed to the 'two-tier' or staged, approach to sentencing.
18 McHugh J explained the distinction between the 'instinctive synthesis' approach and the 'two-tier' or staged approach, as follows:
By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the 'objective circumstances' of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence [51].
19 In Markarian [37] - [39], Gleeson CJ, Gummow, Hayne and Callinan JJ endorsed the approached of Gaudron, Gummow and Hayne JJ in Wong. In particular, their Honours said:
Following the decision of this Court in Wong [[2001] HCA 64; (2001) 207 CLR 584] it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of 'instinctive synthesis', as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression 'instinctive synthesis' may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge [39].
20 In Chivers v The State of Western Australia [2005] WASCA 97, Steytler P (McLure JA agreeing) said that while instinctive synthesis (in the sense described in Markarian) is undoubtedly the preferred approach to sentencing, whether, in a particular case, a failure to adopt that approach constitutes error will depend upon the individual process of reasoning applied by the sentencing judge to the facts and circumstances of the particular case [27]. His Honour then added:
A mathematical, and rigid, staged approach to sentencing, as opposed to a more generally considered approach, taking into account all relevant factors and arriving at one overall result which meets the justice of the case, will, in more complex cases, very probably amount to error. However, in a more simple case in which, for example, there is only one substantially mitigating factor, such as a plea of guilty, or where a quantified allowance is required by legislation, the fact of quantification of the allowance made will not, of itself, amount to error. It is unnecessary (and, in my opinion, inadvisable) to provide any greater guidance in this case, in which the point does not arise for decision and was not addressed in the course of submissions [27].
- See also Abbott v The State of Western Australia [2007] WASCA 105 [19] (McLure JA, Steytler P & Miller AJA agreeing).
21 In Fullgrabe v The State of Western Australia [2006] WASCA 138, Martin CJ (Wheeler & Roberts-Smith JJA agreeing) expressed the view, with respect to 'the particular mitigatory effect of an early plea of guilty', that 'the public interest will generally be better served if the actual amount of the discount for an early plea of guilty is expressly stated by a sentencing Judge each time the discount is given unless for some reason it is inappropriate to do so' [28]. His Honour accepted that this was not 'a requirement of law, but a statement of desirable general practice' [28]. See also Clarkson v The State of Western Australia [2006] WASCA 250 [19] (Wheeler JA, Steytler P agreeing), [31] (McLure JA, Steytler P agreeing); McLean v The State of Western Australia [2011] WASCA 60 [57] (Mazza J, McLure P & Newnes JA agreeing); Chu v The State of Western Australia [2012] WASCA 135 [29] (Mazza JA, Buss JA agreeing).
22 In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [26], French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ cited, with apparent approval, this passage from McHugh J's reasons in Markarian in which he provides this description of instinctive synthesis:
[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case [51]. (emphasis added)
23 In Nannup v The State of Western Australia [2011] WASCA 257, this court (Buss JA, McLure P & Mazza JA agreeing) emphasised, against the background of the High Court authorities, that, unless otherwise required by statute (see, for example, s 8(5) of the Sentencing Act and s 21E(1) of the Crimes Act 1914 (Cth)), the instinctive synthesis approach to sentencing is to be preferred.
24 Part 2 of the Sentencing Act is headed 'General matters'. It comprises s 6 to s 12.
25 Section 8(4) of the Sentencing Act provides that if, because of a mitigating factor, a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court. Although the court must state in open court that, because of a mitigating factor, the court has reduced the sentence it would otherwise have imposed on the offender, the court is not required to state the extent of the reduction.
26 By contrast, s 8(5) of the Sentencing Act provides that if, because an offender undertakes to assist law enforcement authorities, a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court. The apparent purpose or object of Parliament in requiring the court to state in open court the extent to which the court has reduced the sentence it would otherwise have imposed on the offender, because the offender has undertaken to assist law enforcement authorities, is to facilitate the operation of s 37A of the Sentencing Act in the event of the offender reneging on his or her undertaking.
27 Section 37A(1) provides:
If -
(a) a court reduces the sentence it would otherwise have imposed on an offender for an offence (the full sentence) because the offender undertakes to assist law enforcement authorities; and
(b) the offender subsequently fails wholly or partly to fulfil the undertaking,
the court may recall the order imposing the sentence (the reduced sentence) and impose a sentence based on the full sentence but taking into account the extent to which the reduced sentence has taken effect and the extent to which the offender has complied with any orders made under it.
28 Section 8(2) of the Sentencing Act was repealed and s 9AA of that Act was introduced by the Sentencing Amendment Act 2012 (WA).
29 Section 8(2) provided:
A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
30 By s 9AA:
(1) In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a) the offender had been found guilty after a plea of not guilty; and
(b) there were no mitigating factors;
victim has the meaning given in section 13.
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
31 In Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1, I made the following observations (McLure P agreeing) in relation to the proper construction and application of s 9AA:
Section 9AAapplies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.
Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.
If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.
The purpose of allowing a discount under s 9AA is 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea': s 9AA(2).
Section 9AA does not prevent a sentencing judge from reducing the 'head sentence', as defined, for any offence because of any mitigating factor other than a plea of guilty: s 9AA(6).
The apparent purpose or object underlying the repeal of s 8(2) and the introduction of s 9AA is readily discernible from the text of the provisions. It was:
(a) to impose a maximum limit on the discount available for a plea of guilty, namely 25% of the head sentence;
(b) to ensure the maximum discount of 25% may only be given where an offender pleads guilty, or indicates that he or she will plead guilty, at the first reasonable opportunity;
(c) to confine the availability of the discount under s 9AA for a plea of guilty to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'; and
(d) to increase the transparency of the sentencing process by requiring the sentencing judge to state in open court the fact and the extent of any discount under s 9AA for a plea of guilty.
Section 9AA(2) exhaustively states the factors or criteria which may be taken into account in determining whether a discount should be given under s 9AA for a guilty plea and, if so, the extent of the discount. See Beins [No 2] [[2014] WASCA 54] [54].
Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea' enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA.
However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by, for example, any genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors, subjective to the offender, of the kind I have identified [45] - [53].
32 Where a person pleads guilty to a charge for an offence, and the sentencing judge has decided to reduce the 'head sentence' (as defined in s 9AA(1)) for the offence (in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea: s 9AA(2)), the judge must necessarily determine the 'head sentence' he or she would have imposed. That is, the sentencing judge must necessarily determine the sentence he or she would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. The determination of the 'head sentence' is necessary because s 9AA(4) prescribes limits, expressed as a percentage, on the extent to which a sentencing judge may reduce the 'head sentence' to recognise the matters specified in s 9AA(2).
33 So, where s 9AA applies, and the sentencing judge has decided to reduce the 'head sentence', the judge must, first, determine the 'head sentence' and then decide upon the extent of the reduction. The sentencing judge must ensure that the amount or percentage of the reduction recognises only the matters specified in s 9AA(2), takes into account the principle stated in s 9AA(3) and does not exceed the limits prescribed by s 9AA(4).
34 It is apparent, from the decision-making framework in s 9AA, that any reduction in the 'head sentence' under s 9AA must be made before any reductions are made for any other mitigating factors. See, generally, Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386 [66] (Hall J); LJH v The State of Western Australia [2016] WASCA 155 [63] (Martin CJ).
35 Section 9AA(5) requires the sentencing judge to state in open court the fact that the judge has reduced the 'head sentence' and the extent of the reduction. However, as Mazza JA has noted and generally for the reasons he gives, nothing in s 9AA (read and construed as a whole and in the applicable context) expressly or impliedly requires the sentencing judge to expressly state the 'head sentence' in open court.
36 In my opinion, this court should not 'direct or suggest to sentencing judges' that, as a matter of sentencing practice, they should expressly state the 'head sentence', as defined in s 9AA(1), that they would have imposed. My reasons are as follows.
37 First, it is well-established by decisions of this court (notably Chivers, Abbott and Nannup) that, unless otherwise required by statute, the instinctive synthesis approach to sentencing is to be preferred.
38 Secondly, no provision of the Sentencing Act, apart from s 8(5), requires a sentencing judge to state the extent to which the judge has reduced, because of a mitigating factor, the sentence he or she would otherwise have imposed on the offender.
39 Thirdly, as I have mentioned, the apparent purpose or object of s 8(5) of the Sentencing Act, in requiring a sentencing judge to state in open court the extent to which the judge has reduced the sentence he or she would otherwise have imposed on an offender because the offender has undertaken to assist law enforcement authorities, is to facilitate the operation of s 37A of the Sentencing Act in the event of the offender reneging on his or her undertaking.
40 Fourthly, this court does not determine sentencing appeals by reference to an actual or notional 'starting point'. Sentencing appeals are determined by reference to the sentence ultimately imposed and whether the sentencing judge has made an express or implied material error. The principles of manifest excess and manifest inadequacy allege implied errors. Similarly, a contention that the totality principle has been infringed alleges an implied error. This court is not empowered to allow an appeal against sentence unless it is of the opinion that a different sentence should have been imposed: s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
41 Fifthly, apart from the observations in Fullgrabe in relation to the extent of a discount for an early plea of guilty, this court has not directed or suggested that where a sentencing judge states in open court, in accordance with s 8(4) of the Sentencing Act, that the judge has reduced, because of a mitigating factor, the sentence he or she would otherwise have imposed on an offender, the judge must state the extent of the reduction. Fullgrabe was decided before the introduction of s 9AA.
42 Sixthly, if a sentencing judge fails to state the extent of any reduction made under s 9AA, the judge will have made an express error and the error will be amenable to appellate review by this court.
43 Seventhly, the extent of any reduction made by a sentencing judge under s 9AA is amenable to appellate review by this court on the ground of manifest excess or manifest inadequacy. See Kobeissi v The State of Western Australia [2016] WASCA 188; Phan v The State of Western Australia [2016] WASCA 201.
44 Eighthly, there is no reason to suspect that, in the application of s 9AA, sentencing judges (or some of them) do not in fact comply with their obligation to determine the 'head sentence'. In other words, there is no basis for asserting that sentencing judges (or some of them) merely state that they have reduced the 'head sentence' they would have imposed by a specified percentage without having determined the sentence they would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.
45 Ninthly, if this court were to 'direct or suggest to sentencing judges' that, as a matter of sentencing practice, they should expressly state the 'head sentence', sentencing judges would be expected, by virtue of this court's status in the judicial hierarchy, to conform to the 'direction or suggestion'. The 'direction or suggestion' of this court would, in effect and as a practical matter, impose on sentencing judges an obligation of a kind which Parliament has decided to impose in s 8(5), but not in s 8(4) or s 9AA.
46 Tenthly, if this court were to 'direct or suggest to sentencing judges' that, as a matter of sentencing practice, they should expressly state the 'head sentence', the 'direction or suggestion' would, in effect and as a practical matter, require sentencing judges to disclose the total amount of the discount they had given under s 8(4) for all mitigating factors except the plea of guilty. The total amount of the discount would be the difference between the 'head sentence' less the reduction for the plea of guilty, on the one hand, and the ultimate sentence for the offence, on the other.
47 Eleventhly, it may be, as Hall J suggested in Seeto [69] - [72], that, as a matter of policy, amendments to s 9AA are desirable, including an amendment to require sentencing judges to expressly state the 'head sentence' they would have imposed. However, that is a matter for Parliament to consider and, if thought fit, implement by an amending statute. It is not a matter for this court to implement, in effect and as a practical matter, in the manner submitted by counsel for the appellant.
The merits of ground 3
48 I agree with Mazza JA, for the reasons he gives, that ground 3 fails.
Conclusion and orders
49 The appeal must be dismissed. The orders proposed by Mazza JA should be made.
50 MAZZA JA: This is an appeal against sentence.
51 The appellant was charged on indictment in the District Court with five sexual offences, all of which were alleged to have occurred on a date unknown between 24 December 2013 and 28 April 2014, in a South West town by the appellant against his step-granddaughter, a child named C. At all relevant times C was 10 years of age.
52 Count 1 alleged that 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). Counts 2 to 5 alleged that the appellant indecently dealt with C, a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA). Each of counts 2 to 4 alleged that the appellant touched C's breasts while count 5 alleged that the appellant licked C's buttocks.
53 The appellant pleaded guilty to count 1 at the call-over the day before his trial was due to commence. By that time C's evidence had been pre-recorded. The pleas of guilty with respect to counts 2 to 5 were made at the first reasonable opportunity. On 5 November 2015, the appellant was sentenced by O'Neal DCJ as follows:
Count 1 - 4 years' immediate imprisonment (head sentence);
Count 2 - 1 year 2 months' immediate imprisonment;
Count 3 - 1 year 2 month's immediate imprisonment;
Count 4 - 1 year 2 months' immediate imprisonment;
Count 5 - 1 year 6 months' immediate imprisonment.
54 His Honour ordered that the sentences on counts 2 to 5 be served concurrently with each other and concurrently with the sentence imposed on count 1. Thus the total effective sentence imposed upon the appellant was 4 years' immediate imprisonment. He was made eligible for parole.
55 Originally, the appellant relied upon two grounds of appeal. Both grounds referred only to the sentence imposed on count 1. Ground 1 alleged that the sentence of 4 years' immediate imprisonment was manifestly excessive. Ground 2 alleged that the trial judge was obliged by the terms of s 9AA of the Sentencing Act 1995 (WA) to specify the head sentence as defined in that section before applying the discount in recognition of the appellant's guilty plea. Leave to appeal was granted on ground 1. The question of leave to appeal on ground 2 was referred to the hearing of the appeal. Shortly before the hearing of the appeal, the appellant applied to amend the grounds of appeal by adding ground 3. That ground alleged that the learned sentencing judge erred in finding that the 'enormous' age difference between the appellant and the victim was an aggravating factor. The State did not oppose the application to amend. Accordingly, the application should be granted.
The facts of the offending
56 There was no challenge to the facts as read by the prosecutor. They may be summarised in this way. At the time of the offending, the appellant was 68 years of age and C's step-grandfather. As I have said, C was 10 years old.
57 Between 24 December 2013 and 27 April 2014, the victim visited the appellant at his residence located in a country town in the South West of the State. The victim stayed with the appellant for approximately four weeks between Christmas 2013 and January 2014 and for one week over Easter 2014 (ts 70). During this period, the appellant observed the victim walking around the house topless after showering on at least three occasions on different days. On each occasion the appellant fondled the victim's breasts (counts 2 - 4).
58 On one other occasion, C entered the appellant's bedroom. C removed her clothing and lay on the bed with the appellant. The appellant then performed cunnilingus on her. The appellant also licked the victim's stomach area and her bottom (counts 1 and 5).
59 On 3 June 2014, police officers executed a search warrant at the appellant's house. The appellant participated in a visually-recorded interview. He admitted grabbing C on the breasts when she was topless. He also admitted licking her bottom and stomach just above her vagina but denied licking her vagina (ts 70).
Other details in the visually-recorded interview
60 The visually-recorded interview was part of the material tendered to the sentencing judge by the State. In this interview the appellant explained certain aspects of his relationship with C. C had regularly visited the appellant and stayed with him during school holidays for about three years prior to the commission of the offences (ts 72). The appellant told the police, in substance, that he had formed a close bond with C. He referred to her in the interview as his grandchild whom he loved and he described her as a 'good little girl'. In his sentencing remarks, the judge considered this reflected that the appellant was very close to C (ts 72).
The appellant's personal circumstances
61 The sentencing judge was provided with a number of documents with respect to the appellant, being a pre-sentence report dated 26 October 2015, a psychological report by Mr Steve Jobson dated 19 October 2015 and a report by the appellant's general practitioner, Dr Gert Myburgh dated 7 September 2015.
62 Mr Jobson noted the following in his report:
(a) The appellant is a very 'basic' man, that is, he has a concrete and simple approach to life.
(b) The appellant is likely to fall within the low to average range of intelligence and has difficulty with comprehension, particularly related to abstract concepts, and with his verbal expression.
(c) In about 2009 or 2010, his wife, to whom he had been married for about 40 years, died of a heart attack. His union with her was his one and only significant intimate relationship. Her death was a highly distressing event for the appellant, after which he exhibited symptoms of depression which gradually escalated over time.
63 Mr Jobson hypothesised that the appellant offended in the context of a perception that C was a 'substitute' for the emotional connection he once had with his wife. It appeared to Mr Jobson that the appellant viewed some of C's behaviours as sexually provocative, despite the fact that she was only 10 years old.
64 Dr Myburgh's report revealed that the appellant suffers from 'multiple medical conditions', including insulin dependent diabetes, obesity, osteoarthritis, hypertension, mild congestive cardiac failure, depression and hearing loss. Dr Myburgh described the appellant as being in 'poor health'. He expressed the view that there was no medical reason that would make him unfit for imprisonment, provided he is given appropriate care.
65 The author of the pre-sentence report noted that the appellant denied engaging in any 'deliberate' sexual activity with C, although the appellant had difficulty identifying what he considered to be inappropriate activity of this nature.
66 Apart from a minor conviction for stealing in 1983, the appellant has no prior criminal history. He served in the armed forces for a period of time and has worked consistently until his retirement at the age of 65.
The sentencing remarks
67 His Honour identified the following three aggravating factors with respect to the offending, the first of which is the subject of ground 3:
First there was an enormous difference in age between you and the victim. She was 10 years old. You were 68. Second, there was a significant breach of trust. You stood in the place of a step-grandfather to this child. Third, there is the persistence of this conduct occurring as it did on multiple occasions over about four months (ts 89).
68 His Honour said that he did not place a great deal of weight on Mr Jobson's conclusion that the appellant posed a low risk of sexual recidivism. Having regard to statements made by the appellant in his visually recorded interview as to the frequency with which he touched C on her breasts and how he licked her belly and backside, his Honour concluded that the extent of risk of recidivism was directly related to opportunity (ts 91).
69 With respect to the pleas of guilty, his Honour gave a reduction, pursuant to s 9AA of the Sentencing Act, of 15% for count 1, and 25% for counts 2 - 5. His Honour did not give the maximum 25% discount on count 1 because of the lateness of the plea of guilty. In his treatment of the guilty pleas, his Honour did not state the head sentence as that term is defined in s 9AA(1). This failure is the alleged error the subject of ground 2.
70 His Honour took into account as mitigating factors:
(a) his pleas of guilty;
(b) his partial cooperation with the police in the visually-recorded interview;
(c) the absence of any record of offending;
(d) his work history and military service; and
(e) his ill health in the sense that although none of his problems were causative of the offending, his depression is likely to make imprisonment weigh more heavily upon him.
71 His Honour addressed the relevant general sentencing principles for offences of the type committed by the appellant. He said:
Offences involving sexual abuse of children are very serious and the dominant sentencing considerations are personal and general deterrence and the protection of children. Mitigating factors are given less weight (ts 92).
72 His Honour concluded that the only appropriate sentence for each offence was a term of imprisonment. He observed that counts 1 and 5 occurred on the same occasion, and that it would be inappropriate in the circumstances to accumulate those terms. His Honour addressed the question of totality generally and decided, having regard to this factor, that the sentences on counts 2 - 5 should be served concurrently with each other and concurrently with the term he imposed for count 1.
73 His Honour then considered whether the terms of imprisonment should be suspended. His Honour said that having revisited all relevant sentencing factors, and having regard to the nature, gravity and extent of the offending, suspension of the terms of imprisonment was not warranted (ts 94).
General principles applicable to this appeal
74 The general principles applicable to this appeal were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. I respectfully adopt that statement. It is well known and does not need to be repeated.
Disposition of the grounds of appeal
75 I will deal with each ground of appeal in reverse order.
Ground 3
76 As I mentioned earlier, one of the three aggravating factors identified by the learned sentencing judge was the 'enormous' difference in age between the appellant and C, with his Honour noting that, at the time of the offending, C was 10 years old and the appellant was 68 (ts 89).
77 In HFM v The State of Western Australia [2012] WASCA 217, Buss JA (with whom McLure P and I agreed) said:
His Honour said that the age disparity between the appellant and C was an aggravating feature of the offending (ts 24). I disagree. The culpability of an adult who engages in intra-familial sexual abuse of a young child does not increase merely by reason of the offender being middle-aged or elderly. Community abhorrence towards this kind of offending is not a matter that an adult understands only, or understands better, with increasing age or enhanced maturity. It is well understood generally by adults of all ages.
In the present case, an aggravating feature of the appellant's offending was that C was very young when the abuse commenced. She was 5 when counts 1 to 4 were committed [75] - [76].
78 The appellant's offending was analogous to intra-familial sexual abuse. The learned sentencing judge's identification of the difference in age as an aggravating factor is contrary to what was said by Buss JA (McLure P and I agreeing) in HFM and is, with great respect, erroneous.
79 However, the error is not material to the outcome of this appeal. C was very young when the offending occurred. This factor is properly to be regarded as an aggravating factor.
80 When C's age is taken into account in combination with the other (unchallenged) aggravating factors identified by his Honour, the objective seriousness of the appellant's offending has not materially changed.
81 I am satisfied, having regard to all of the circumstances of the offending and all relevant sentencing factors, that, despite the error, no different sentence should have been imposed: s 31(4)(a) Criminal Appeals Act 2004 (WA).
82 While I would grant leave to appeal on ground 3, the error identified in the ground is not material.
Ground 2
83 Section 9AA of the Sentencing Act is in these terms:
(1) In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if -
(a) the offender had been found guilty after a plea of not guilty; and
(b) there were no mitigating factors;
victim has the meaning given in section 13.
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a) by more than 25%; or
(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
84 Section 9AA of the Sentencing Act commenced operation on 20 December 2012. At the same time, s 8(2) of the Sentencing Act was repealed. That subsection stated that:
A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.
85 Since s 9AA commenced operation, this court has considered its scope and effect in a number of cases, beginning with Forkin v The State of Western Australia [2013] WASCA 51 and including Beins v The State of Western Australia [No 2] [2014] WASCA 54; Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1; Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508; Thomas v The State of Western Australia [2014] WASCA 202; Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386 and LJH v The State of Western Australia [2016] WASCA 155.
86 In Forkin, the offender's appeal against sentence was allowed and this court was required to resentence him. By this time, the operation of s 9AA had commenced and this court was obliged to take it into account. The court sought submissions from the parties as to the scope and effect of the section. The parties submitted an agreed position as follows:
(1) where there is to be a reduction under s 9AA(2) for a plea of guilty, s 9AA does not require a sentencing judge to expressly identify the head sentence provided the actual percentage reduction that has been made is otherwise clear from the sentencing judge's reasons;
(2) any discount for a plea of guilty must be to the head sentence (that is, before the head sentence is discounted for any other mitigating factors);
(3) the matters specified in subs (2) ('to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea') exhaustively state the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty and if so, the extent of the discount. Remorse and the other subjective considerations which informed the weight to be given to a plea of guilty under the former sentencing regime (as explained by the majority in Cameron [v the Queen (2002) 209 CLR 339]), are no longer relevant considerations in determining what discount, if any, is to be given to a plea of guilty;
(4) however, remorse and the other subjective considerations referred to in (3) may be taken into account under s 9AA(6);
(5) s 9AA does not require the sentencing judge to state the extent of the reduction, individual or cumulative, given for mitigating factors other than the plea of guilty [21].
87 At [23] of Forkin, McLure P (with whom I agreed) said:
The full ramifications of what the legislature has done by the enactment of s 9AA need not (and should not) be determined by this court in effect at first instance. The agreed positions of both parties on the proper construction and effect of s 9AA are clearly open and should be accepted.
88 In Abraham, Buss JA (with whom McLure P agreed) described the operation of s 9AA in these terms:
Section 9AAapplies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.
Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.
If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.
The purpose of allowing a discount under s 9AA is 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea': s 9AA(2).
Section 9AA does not prevent a sentencing judge from reducing the 'head sentence', as defined, for any offence because of any mitigating factor other than a plea of guilty: s 9AA(6).
The apparent purpose or object underlying the repeal of s 8(2) and the introduction of s 9AA is readily discernible from the text of the provisions. It was:
(a) to impose a maximum limit on the discount available for a plea of guilty, namely 25% of the head sentence;
(b) to ensure the maximum discount of 25% may only be given where an offender pleads guilty, or indicates that he or she will plead guilty, at the first reasonable opportunity;
(c) to confine the availability of the discount under s 9AA for a plea of guilty to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'; and
(d) to increase the transparency of the sentencing process by requiring the sentencing judge to state in open court the fact and the extent of any discount under s 9AA for a plea of guilty.
Section 9AA(2) exhaustively states the factors or criteria which may be taken into account in determining whether a discount should be given under s 9AA for a guilty plea and, if so, the extent of the discount. See Beins [No 2] [54].
Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea' enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA.
However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by, for example, any genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors, subjective to the offender, of the kind I have identified [45] - [53].
89 The present case does not involve any controversy as to the meaning of the expressions 'first reasonable opportunity' (as to which see Rossi and Thomas), and 'benefits to the State' (as to which see Beins [No 2] and Abraham).
90 As framed, ground 2 appears to challenge the correctness of that part of the agreed procedure in Forkin which stated that s 9AA does not require a sentencing judge to expressly identify the head sentence as that expression is defined in s 9AA(1).
91 The question of whether a sentencer is obliged by s 9AA to expressly identify the head sentence turns on the proper construction of the section. The appellant's written submissions did not engage in a textual analysis of the section. The appellant instead relied upon certain statements made by Hall J in Seeto to support the ground. However, in oral submissions, the appellant's counsel accepted the correctness of the agreed position in Forkin, and, in effect, accepted that there was no warrant in the statutory language for the proposition alleged in the ground of appeal (appeal ts 8 - 11). In the end, ground 2 boiled down to a submission that this court should suggest to sentencers that it is desirable sentencing practice to expressly identify the head sentence (appeal ts 10).
92 As a plain reading of the section reveals, s 9AA does not expressly require a sentencer to state the head sentence as defined by s 9AA(1). There is no basis in the statutory text, read and construed in the applicable context, for making an implication to that effect. Had the legislature wished to impose such an obligation upon a sentencing judge, it could have done so. The absence of such an obligation stands in contrast to s 9AA(5). There, it will be recalled, a sentencer is obliged to state in open court that a reduction in sentence has been made for the plea of guilty under subsection (2), and the extent of the reduction made having regard to subsections (3) and (4).
93 Seeto does not support the ground of appeal. The appellant in Seeto, as in the present case, did not assert that the approach adopted by the majority in Forkin was wrong. In Seeto, Hall J observed that nothing in Forkin required a sentencer to state the head sentence. Importantly, his Honour expressly acknowledged that such a statement is not required by s 9AA [67].
94 His Honour identified some consequences of the operation of s 9AA which he regarded as problematic. He expressed the problems as follows:
The problem with the Forkin procedure is that the head sentence is not stated so there is no figure to which the offender can apply the percentage to calculate the discount he or she received. Nor can the discount be calculated back from the final sentence imposed. This is because s 9AA requires any discount to be applied before taking into account other mitigating factors. Any reduction allowed for those other factors does not have to be stated. Accordingly, since it is not possible to know what reduction was allowed for those other factors it is usually impossible to reverse-engineer to the starting point and thereby calculate the discount. A law that seems intended to make the discount more certain and apparent does not achieve that objective if the Forkin procedure is followed. That, of course, may be the fault of the statute and how it is framed. However, the effect is that offenders may know that they have received a discount expressed in percentage terms, but that knowledge has limited utility because it generally cannot translate into a calculable period of time.
There is another risk with the Forkin procedure. It is that a sentencing judge will merely state a percentage discount without in fact going through the procedure required by s 9AA. A sentencing judge might wrongly think that an entirely instinctive synthesis approach with an aside regarding a percentage discount would meet their obligations. There is also the risk that having stated a percentage discount a sentencing judge who does not go through the steps that s 9AA requires will forget to actually apply it, or will make an error in applying it. If those types of errors occur they will not be apparent. If such an error has been made the only recourse for the sentenced person will be to argue that the final sentence for an individual offence is manifestly excessive or that the total sentence infringes the totality principle. The difficulty in mounting such an argument is that it will significantly depend upon comparisons with other cases, some of which will involve guilty pleas that have also been dealt with in the Forkin manner [69] - [70].
95 In light of the statutory text, this court cannot remedy the problems identified by Hall J. They are matters for the legislature to consider and, if thought appropriate, deal with by amendment. In the meantime, the correct position is that sentencers are not required by anything in s 9AA to state the head sentence as defined by s 9AA(1).
96 Nevertheless, it is not an error for a sentencer to state the head sentence: Williams v The State of Western Australia [2015] WASCA 16 [22]. The sentencing practice which has developed over time since Forkin is, almost universally, not to do so, but there have been, in this court's experience, cases where the head sentence has been expressly identified: Williams is just such a case. Whether a sentencer chooses to state the head sentence in a case is a matter for him or her to decide.
97 In the end, ground 2 can only succeed if the appellant establishes that the sentencing judge was bound by the terms of s 9AA of the Sentencing Act to expressly identify the head sentence. Even if the appellant had established that it was desirable to do so, that would not be sufficient. The learned sentencing judge in the present case did not state the head sentence from which he made the deduction for the plea of guilty. As he was not bound to do so, his approach was not erroneous. Ground 2 has not been made out. I would refuse leave to appeal in respect of it.
Ground 1
98 I now turn to ground 1. This ground focuses upon the individual sentence of 4 years' immediate imprisonment imposed with respect to count 1.
99 The appellant submitted that the sentence was unreasonable and plainly unjust by reason of the appellant's favourable antecedents, the psychological factors which existed at the time of the offence and the outcomes in comparable cases. The cases relied upon by the appellant were Schriever v The State of Western Australia [2008] WASCA 133; C v The State of Western Australia [2006] WASCA 261; KC v The State of Western Australia [2008] WASCA 216; LJP v The State of Western Australia [2010] WASCA 85 and BGR v The State of Western Australia [2014] WASCA 82.
100 It was also submitted that the appellant, of his own volition, ceased to commit the offence and told the victim to leave his bedroom. This submission was not maintained at the hearing of the appeal, there being no evidence to support it.
101 The orthodox approach to the question of manifest excess is to examine the individual sentence, having regard to the maximum sentence for the offence (in this case, 20 years' imprisonment); where the offending conduct sits in the scale of seriousness of offences of its type; the standards of sentencing customarily observed with respect to the offence; and the personal circumstances of the offender.
102 Although there was no violence, threats or intimidation involved in count 1 and the offence was not premeditated, it was nevertheless a serious example of its type. The victim was young and vulnerable. The appellant understood that his behaviour towards C was wrong and that he should not be engaging in it. The offence was not an isolated aberration of sexual or indecent misconduct. Any notion that C's behaviour somehow justified the appellant's actions was rightly rejected by the sentencing judge and affords no mitigation whatever. The offence, although not involving penile penetration, was an invasion and abuse of C's bodily integrity and constituted a gross breach of trust.
103 It must be accepted that the appellant has been badly affected by the death of his much-loved wife. It may be that this event led to the appellant perceiving C as a 'substitute' for the emotional connection he once had with his wife. However, the appellant knew that what he was doing was wrong and any perception of C as a 'substitute' would have been deviant and an affront to basic community standards.
104 I have had regard to the comparable cases cited by the appellant. They are of limited utility.
105 There is no 'tariff' for offences of the kind committed by the appellant. Sentences imposed in other cases provide a yardstick against which to measure the sentence under consideration with the aim of ensuring broad consistency. They do not mark the boundaries within which the sentencing discretion is to be exercised. What is important are the unifying principles which sentences imposed in comparable cases both reveal and reflect: Fenton v The State of Western Australia [2015] WASCA 255 [17].
106 The cases reveal that the primary sentencing consideration for offences of the type committed by the appellant are appropriate punishment and general and personal deterrence with the aim of protecting vulnerable children from abuse. Matters personal to the offender carry less mitigatory weight: The State of Western Australia v FJG [2012] WASCA 206 [56].
107 It is unnecessary to analyse each of the cases cited by the appellant. I have read them and taken into account their varying facts and circumstances. The best that might be said for the appellant is that the individual sentence imposed on count 1 was high, but, in my opinion, it is broadly consistent with the outcomes in other cases.
108 I have had regard to the appellant's plea of guilty (for which he received an arguably generous discount of 15%, bearing in mind the lateness of the plea, prior to which C had to give pre-recorded evidence); his personal circumstances; his physical health problems and that his depression will make his imprisonment more arduous.
109 Having regard to all relevant sentencing considerations, I have not been persuaded that the sentence imposed on count 1 was unreasonable or plainly unjust. The sentence is not manifestly excessive. Ground 1 must be dismissed.
110 Had I concluded that ground 1 had been made out, it would not follow that the total effective sentence imposed upon the appellant would have been reduced.
111 Section 41(2) and s 41(3) of the Criminal Appeals Act provide:
(2) If under this Act an appeal court varies or sets aside a sentence (sentence A), it may vary any other sentence -
(a) that was imposed at or after the time when sentence A was imposed; and
(b) that took into account sentence A.
(3) If under this Act an appeal court decides to vary a sentence, it may do one or more of the following -
(a) vary the sentence as imposed;
(b) impose a different sentence involving a different sentencing option;
(c) order that the sentence is to be taken to have taken effect on a date before the date of the order;
(d) order that the sentence is to take effect on a date on or after the date of the order.
Conclusion and orders
113 The appeal must be dismissed. I would make the following orders:
1. The application to amend the grounds of appeal to add ground 3 is granted.
2. Leave to appeal on ground 3 is granted.
3. Leave to appeal on ground 2 is refused.
4. The appeal is dismissed.
114 CORBOY J: I agree with the orders proposed by Mazza JA, generally for the reasons given by his Honour.
115 I also agree, for the reasons given by the President, that this court should not direct or suggest to sentencing judges that, as a matter of sentencing practice, they should expressly state the 'head sentence', as defined in s 9AA(1) of the Sentencing Act 1995 (WA), that they would have imposed.
116 I would only add that s 9AA in its present form preserves the 'instinctive synthesis' approach to sentencing, while enabling a sentencing judge to expressly identify the head sentence, (and necessarily, the reduction in a sentence for a plea of guilty and other mitigating factors) if that is thought to be desirable in the interests of justice. Whether the section should be amended is, of course, a matter for Parliament. However, in my view the section, as currently enacted, embodies the preferred policy position given the observations of the High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 and this court in Chivers v The State of Western Australia [2005] WASCA 97.
259
29
3