KJW v The State of Western Australia

[2012] WASCA 162

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	KJW -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 162

CORAM : BUSS JA

MAZZA JA

HEARD	:	25 JUNE 2012
DELIVERED	:	22 AUGUST 2012
FILE NO/S	:	CACR 61 of 2012

BETWEEN : KJW

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram	: STAVRIANOU DCJ
File No	:  IND 502 of 2011
Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty - Child sex offences - Two counts of indecent dealing against one complainant and three counts of indecent dealing against another complainant - Appellant the stepfather of the complainants - Total effective sentence of 4 years' immediate imprisonment - No infringement of the totality principle

[2012] WASCA 162

Legislation:

Criminal Code (WA), s 320(4), s 321(4), s 321(8)(b)

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr P D Yovich
Respondent	:	No appearance

Solicitors:

Appellant	:	David Manera
Respondent	:	Director of Public Prosecutions (WA)

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

GJT v The State of Western Australia [2011] WASCA 263
LJP v The State of Western Australia [2010] WASCA 85
M v The State of Western Australia [2006] WASCA 256
MPD v The State of Western Australia [2008] WASCA 57
PP v The State of Western Australia [2004] WASCA 144
SAP v The State of Western Australia [2011] WASCA 155

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

Crim R 373

Woods v The Queen (1994) 14 WAR 341

[2012] WASCA 162

BUSS JA

1. BUSS JA: The appellant was charged on indictment with three counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code), and four counts of indecently dealing with a child between the age of 13 and 16 years, contrary to s 321(4) of the Code.

2              Counts 1 and 4 related to one complainant (R); counts 2 and 3 to

another complainant (L); and counts 5, 6 and 7 to a third complainant (J).
Each complainant was a girl.

3              The appellant pleaded not guilty to all of the counts. He was tried in

the District Court before Stavrianou DCJ and a jury. Judgments of conviction were entered on counts 1, 4, 5, 6 and 7. The appellant was acquitted on counts 2 and 3.

1. Counts 1, 4, 5, 6 and 7 alleged:

(a)	Count 1: on a date unknown between 31 December 1998 and 14 October 2000, the appellant indecently dealt with R, a child between the age of 13 and 16 years, by rubbing her vagina.
(b)	Count 4: on a date unknown between 29 February 2000 and 31 October 2000, the appellant indecently dealt with R, a child between the age of 13 and 16 years, by rubbing her vagina.
(c)	Count 5: on a date unknown between 31 December 2003 and 1 January 2005, the appellant indecently dealt with J, a child under the age of 13 years, by rubbing her vagina.
(d)	Count 6: on a date unknown between 1 April 2005 and 1 June 2005, the appellant indecently dealt with J, a child between the age of 13 and 16 years, by rubbing her vagina.
(e)	Count 7: on a date unknown between 1 April 2005 and 1 June 2005, the appellant indecently dealt with J, a child between the age of 13 and 16 years, by touching her breast.

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

Count 1:	18 months;
Count 4:	18 months;

[2012] WASCA 162

BUSS JA

Count 5:	18 months;
Count 6:	18 months;
Count 7:	12 months.

6              His Honour ordered that the sentences for counts 4 and 6 be served

concurrently with the sentence for count 1, that the sentence for count 5 be served cumulatively on the sentence for count 1, and that the sentence for count 7 be served cumulatively on the sentence for count 5. The total effective sentence was therefore 4 years' immediate imprisonment. A parole eligibility order was made.

1. The appellant has applied to this court for leave to appeal against

   sentence.

The facts and circumstances of the offending

8              In 1988 the appellant and a woman, T, commenced a relationship. In

1991 they were married. They had two children, a boy born in 1990 and a girl born in 1993. T had two children from a prior relationship, namely R (the complainant in counts 1 and 4) and L (the complainant in counts 2 and 3). In late 1999 the appellant and T separated. The appellant then commenced residing in a Perth suburb where count 1 occurred. Later, he moved to another Perth suburb, where count 4 was committed.

9              In 2002 the appellant commenced a relationship with a woman, K.

In 2003 they were married. K already had two children, one of whom was J (the complainant in counts 5, 6 and 7). Count 5 occurred at a house in a Perth suburb. Count 6 and 7 occurred at a house in rural Western Australia. In 2006 the appellant and K separated.

10            As to count 1, R went to bed early. She awoke in the middle of the

night. The appellant climbed onto her bed. He put his hand down her pants and rubbed her vagina. The rubbing continued for about five to 10 minutes. The appellant then removed his hand, got out of her bed and left the room. R went back to sleep.

11            Count 4 occurred a few months before R's 15th birthday. She was

asleep. R awoke and discovered that the appellant had his hand down her
pants and was rubbing her vagina.

[2012] WASCA 162

BUSS JA

12            As to count 5, J was in her room and dressed in her pyjamas. The

appellant knocked on the door and entered her room. He commenced touching J on her stomach under her pyjama top. The appellant then touched her in the area between her stomach and genitals. Next, he placed his hand in her pants and rubbed her vagina for about 10 to 15 minutes.

13            As to count 6, J was lying on a couch. The appellant came into the

room and spoke to her. He commenced touching J on her stomach under her shirt. He then ran his hand down her stomach and placed his hand in her pants. The appellant forced J's legs apart a little and commenced rubbing her vagina. The rubbing continued for about 15 minutes.

14            As to count 7, J was asleep on a couch. She awoke to find the

appellant's hand on her breast. He quickly removed his hand. J then got
up and left the room.

The trial judge's sentencing remarks

1. The trial judge recorded in his sentencing remarks the facts and circumstances of the offending.

16            His Honour then turned to the appellant's personal circumstances.

The appellant was born in 1965. He was aged 46 when sentenced. At the time of sentencing the appellant was living in another State with a woman who had two children. He had a relatively minor prior criminal record. The appellant had not committed any previous offences of a sexual nature and he had never before received a custodial sentence. A number of written character references were submitted to his Honour. The authors of the references spoke well of the appellant. He had a very good work ethic. After leaving school at the end of year 10, the appellant completed a spray painting apprenticeship. Since then he has worked consistently as a spray painter.

17            The material before the trial judge included a psychological report

dated 22 March 2011 from Ms Cinzia Zuin and a pre-sentence report dated 28 February 2012. Both reports noted that the appellant continued emphatically to deny his offending behaviour. He claimed that all of the counts against him had been fabricated. On the basis of a Static 99 assessment test, Ms Zuin concluded that the appellant was at a low risk of re-offending. Nevertheless, she recommended that, after his release from custody, the appellant should not be permitted to have any unsupervised contact with children.

[2012] WASCA 162

BUSS JA

The proposed ground of appeal

1. The appellant relies on one proposed ground of appeal.

19            It alleges that the total effective sentence did not bear a proper

relationship to the overall criminality involved in all of the offences, having regard to the circumstances in which they were committed and factors personal to the appellant.

The merits of the proposed ground of appeal

1. The appellant does not challenge the length of any of the individual

   sentences.

21            A complaint that a sentencing judge has infringed the totality

principle involves an allegation of inferred error. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.

22            In the present case, the maximum penalty for each of the indecent

dealing offences committed by the appellant is 10 years' imprisonment. See s 320(4) of the Code in relation to count 5 and s 321(4) read with s 321(8)(b) of the Code in relation to counts 1, 4, 6 and 7.

23            The primary sentencing considerations for offences of the kind in

question are punishment of the offender, specific and general deterrence, and the protection of vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 - 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).

24            It is well-established that in cases of intra-familial sexual abuse,

matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their

[2012] WASCA 162

BUSS JA

perception of the offender. See MPD v The State of Western Australia
[2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).

25            There is no 'tariff' for offences of the kind in question (or for sex

offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum available penalty and all relevant sentencing considerations. It is important, however, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of avoiding the risk of sentencing becoming idiosyncratic and arbitrary. See The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] - [69] (Steytler P, McLure JA agreeing).

26            I have considered the sentencing outcomes in LJP v The State of Western Australia [2010] WASCA 85, SAP v The State of Western Australia [2011] WASCA 155 and GJT v The State of Western Australia [2011] WASCA 263, and in the decisions referred to in those cases. It is unnecessary to set out the relevant facts and circumstances or the sentences imposed. Although there are some comparable features between some of the cases which I have considered, on the one hand, and the present case, on the other, there are also distinguishing factors. It is a trite proposition, but each case necessarily turns on its own facts and circumstances. For example:

(a)	In LJP, the offender entered fast-track pleas of guilty, made admissions to the police before the complainant was formally interviewed, and volunteered to the police that he had offended against the complainant on an occasion about which complaint had not been made.
(b)	In SAP, the offender entered late pleas of guilty.
(c)	In GJT, the offender entered early pleas of guilty, was genuinely remorseful, and had been substantially (if not completely) rehabilitated during the lengthy period between the occurrence of the offending and the making of a complaint to the police.

27            In the present case, the appellant's offending was serious. He

offended against two complainants. The appellant was their stepfather and he indecently dealt with them when they were left in his care. The offences occurred between about 1999 and about 2005. The offending was not confined to a short period. Most of the offences were committed

[2012] WASCA 162

BUSS JA
MAZZA JA

when the appellant thought the complainants were asleep. These offences therefore appear to have been, at least to some extent, planned and premeditated. The criminal behaviour, in the case of counts 1, 5 and 6, was not fleeting. He rubbed the complainant's vagina for up to 10 or 15 minutes. The appellant continued to deny his offending after he was convicted, and he evinced no remorse or contrition. He did not have the benefit of the mitigation that pleas of guilty would have brought. The indecent dealing had a traumatic and ongoing impact on each of the complainants.

28            In my opinion, it is not reasonably arguable that the total effective

sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle. It was necessary to accumulate some of the individual sentences, as the trial judge did, in order to recognise that there were two victims and that there were significant intervals between the commission of the individual counts; in particular, between the offending against R and the offending against J. The total effective sentence was proportionate to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including the facts and circumstances of the offending, other cases with some comparable features to the present case, and the appellant's personal circumstances. No error is able to be inferred from the sentencing outcome.

Conclusion

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

2. MAZZA JA: I agree with Buss JA.