Kmo v The State of Western Australia
[2025] WASCA 15
•29 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KMO -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 15
CORAM: BUSS P
MITCHELL JA
HEARD: 22 JANUARY 2025
DELIVERED : 29 JANUARY 2025
FILE NO/S: CACR 101 of 2024
BETWEEN: KMO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: ZEMPILAS DCJ
File Number : IND 700 of 2023
Catchwords:
Criminal law - Sentencing - Child sex offending - Appeal against sentence - Attempted sexual penetration and indecent dealing of a 12‑year‑old child by his cousin aged 36 or 37 years - Whether individual sentence of 14 months' immediate imprisonment for indecent dealing offence was manifestly excessive - Whether total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle - Turns on own facts
Legislation:
Criminal Code (WA), s 320(2), s 320(4), s 552
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Kabambi v The State of Western Australia [2019] WASCA 44
OMC v The State of Western Australia [2023] WASCA 86
UGN v The State of Western Australia [2021] WASCA 10
JUDGMENT OF THE COURT:
Summary
On 13 August 2024, the appellant was convicted after trial by jury of:
1.attempting to sexually penetrate the complainant, a child under the age of 13 years, by attempting to introduce his penis into the complainant's mouth, contrary to s 320(2) and s 552 of the Criminal Code (WA) (count 1); and
2.indecently dealing with the same complainant, a child under the age of 13 years, by exposing his penis to the complainant, contrary to s 320(4) of the Criminal Code (count 2).
These offences were committed at the same country town (Town) on unknown dates between 6 February 2008 and 11 November 2008. The maximum penalty for each offence was a sentence of 10 years' imprisonment.
On 19 September 2024, the appellant was sentenced to a total effective sentence of 3 years 6 months' immediate imprisonment for these offences, comprising:
1.a sentence of 2 years 4 months' immediate imprisonment for the attempted sexual penetration offence charged in count 1 of the indictment; and
2.a cumulative sentence of 14 months' immediate imprisonment (reduced from 18 months for totality) for the indecent dealing offence charged in count 2 of the indictment.
The appellant was made eligible for parole. As the appellant had not spent any time in custody on remand, the total effective sentence took effect from the date on which it was imposed.
The appellant now appeals against these sentences on two grounds. Ground 1 contends that the sentence of 14 months' immediate imprisonment imposed for the indecent dealing offence charged in count 2 of the indictment was manifestly excessive. Ground 2 contends that the total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle.
For the following reasons, neither ground of appeal has any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal should be dismissed.
Circumstances of offending
The trial judge made the following findings as to the circumstances of the offending.[1]
[1] Trial ts 172 - 174.
The complainant was 12 years old and in year 7 of primary school at the time of the offending. Although the complainant referred to the appellant as his uncle, the appellant is the complainant's cousin. The appellant is 24 years older than the complainant and was 36 or 37 years old at the time of the offending.
In 2008, the 12-year-old complainant was living at the house of the appellant's father (the complainant's uncle), at the Town. The complainant's parents were unable to look after him at that time. While staying at the house, the complainant slept on a single mattress and base in the front lounge room of the house. The appellant's father and younger brother had their own bedrooms. The appellant slept in another bedroom when he stayed over at the house.
Count 1 occurred on an unknown date in 2008. The complainant was asleep in the lounge room, wearing a singlet, football shorts and underpants. At some time during the night the complainant awoke and felt someone on the bed. He felt hands touching his face and heavy breathing. The complainant felt someone on top of him. The complainant felt something pushing against or into his mouth which felt like skin but was not hands. He said it was the person's 'privates', meaning their penis. This person was the appellant.
The appellant kept trying to push his penis into the complainant's mouth. The complainant kept his mouth closed and his teeth clenched and moved his head around to stop the appellant's penis entering his mouth. The complainant said this went on for about five minutes, although accepted he could not be clear about this because of his age at the time.
The appellant then walked out of the room and, in the partial light from a fireplace, the complainant saw that it was the appellant. The complainant closed his eyes as the appellant looked at him, as the complainant did not want the appellant to notice that he had seen him. When the appellant left, the complainant placed his mattress as a barricade over the entrance to the room. He then climbed out a window and went outside across the road to a park until sunrise. He came back into the house in the morning and later went to school. When the complainant returned from school the mattress had been moved back onto his bedframe.
Count 2 occurred on a later date in 2008. At the appellant's suggestion, the complainant and appellant went crabbing at a river in the Town. They were dropped off by the appellant's father, who the complainant thought would be joining them but who did not do so. After crabbing, the appellant and complainant started walking back to the house. They were both picked up by someone and driven home. The house was empty when they arrived.
The complainant went into the appellant's brother's room and played video games. The appellant entered the room and said something to the complainant, suggesting that the appellant wanted the complainant to do something. The complainant followed the appellant into the appellant's bedroom. The complainant was standing in the room and the appellant was standing in the doorway, wearing jeans and a shirt. The complainant asked the appellant what the appellant needed him to do.
The appellant then pulled down his jeans and underpants and exposed his penis to the complainant. The appellant said to the complainant, 'Come here and suck this'.[2] The complainant said, 'No', and left the house. The complainant went to his friend's house, where he spent the rest of the day swimming in the pool. The complainant later returned home when the appellant's father and others were in the house.
[2] Trial ts 174.
On 7 September 2021, the complainant disclosed the offending to police. The appellant was arrested in July 2022.
Victim impact
The trial judge found that the offending impacted the complainant significantly throughout his life to the time of sentencing and would continue to do so. The complainant's victim impact statement described his loss of trust in others and his loss of enjoyment in life, including in sport and other recreational activities that he used to enjoy as a younger child. The complainant also described the damage that the offending had caused within his other family relationships and to his ability to focus and to hold down stable employment. The complainant feels panic, anxiety and fear regularly, which impacts his life day‑to‑day, and these impacts will not be short-lived. The trial judge recognised that the impacts of childhood sexual abuse can be lifelong.[3]
[3] Trial ts 177 - 178.
Personal circumstances
The appellant was 53 years old at the time of sentencing. He was one of seven children and was raised in Perth. The appellant had minimal contact with his siblings other than one brother. The appellant was single at the date of sentencing, following the breakdown of a 20 year 'on and off' relationship. The appellant had 13 children ranging in age from 16 to 30 years and nine grandchildren.[4]
[4] Trial ts 174 - 175.
The appellant completed high school to year 10 and has since worked in a variety of different capacities. The appellant acknowledged regular alcohol use and intermittent cannabis use. There was no specific information as to the appellant's use of substances at the time of the offending, or any indication of particular physical or mental health concerns.
The appellant had a criminal history spanning more than 20 years. It consists of a variety of different offending. The trial judge noted that the appellant had received sentences of imprisonment for offences of:[5]
1.threats to kill and being armed to cause fear in 2019;
2.assault of a public officer, assault occasioning bodily harm and burglary in 2013; and
3.aggravated assault occasioning bodily harm and unlawful damage in 2009.
The trial judge observed that the appellant also had convictions for breaching family violence restraining orders and police orders and protective bail conditions, for which a variety of penalties (including imprisonment and community-based orders) had been imposed. The appellant has also been convicted of traffic offences. There is nothing of a similar nature to the present child sexual offences on the appellant's record.
[5] Trial ts 175.
Trial judge's approach
The trial judge identified the following aggravating features of the appellant's offending:[6]
1.The attempted sexual penetration involved the appellant pressing the complainant's mouth directly with his penis at a time when the complainant was in bed asleep and therefore rendered more vulnerable.
2.The indecent dealing involved the appellant inviting the complainant into the appellant's bedroom when they were at the house alone together and exposing his penis to the complainant while saying words that clearly indicated the appellant's intention or wishes.
3.At the time of the offending the complainant was only 12 years old, while the appellant was either 36 or 37 years of age.
4.The complainant is the appellant's younger cousin who referred to the appellant as his uncle. At the time of both offences, the complainant was living at the house where the appellant was staying. The complainant was away from his parents and siblings and was entitled to feel that he could trust and would be cared for by family members in that home. The appellant's offending represented a breach of trust.
[6] Trial ts 175 - 176.
The trial judge observed that the appellant's prior criminal history was not an aggravating factor but demonstrated that committing any offence was not an uncharacteristic aberration. The trial judge recognised that the appellant's criminal history elevated the significance of personal deterrence and community protection as sentencing considerations.
The trial judge found that there were 'minimal or no mitigating factors'.[7] The appellant had not pleaded guilty or demonstrated remorse. While it was suggested that the appellant had plans for rehabilitation, those plans were limited to employment and were not specifically directed to any factors which might have contributed to the present offending.
[7] Trial ts 176.
In imposing the sentences referred to above, the trial judge concluded that sentences of immediate imprisonment were the only appropriate sentences for the charged offences.[8]
[8] Trial ts 177.
General principles
As was noted in Kabambi v The State of Western Australia,[9] the general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[9] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Disposition
In our view, there is no merit in either ground of appeal.
Ground 1: whether sentence for count 2 is manifestly excessive
As to ground 1, the maximum penalty for the offence of indecently dealing with a child under the age of 13 years is 10 years' imprisonment. It is well established that, because of the need to protect vulnerable children, the primary sentencing considerations for child sexual offences are punishment of the offender and personal and general deterrence. As a result, matters personal to an offender will ordinarily carry less weight.[10]
[10] UGN v The State of Western Australia [2021] WASCA 10 [42].
While the offence charged in count 2 did not involve any actual physical contact, the appellant's conduct was not merely exposing his penis to the complainant. The appellant exposed his penis and demanded that the complainant perform fellatio upon him while they were alone in the house. This occurred in the context where the vulnerable 12-year-old complainant regarded the appellant, who was 24 years older, as his uncle. As such, the offending involved a serious breach of trust. The offending had the significant harmful impact on the complainant referred to above.
The trial judge correctly recognised that there were no mitigating circumstances: the appellant was not of prior good character, had not pleaded guilty or demonstrated remorse, was not youthful at the time of the offending and had not taken any meaningful steps towards rehabilitation. While the appellant had not previously been convicted of any child sexual offences, his extensive criminal history elevated the significance of personal deterrence and community protection as sentencing considerations.
The appellant's submissions do not contend that the sentence for count 2 falls outside the range of sentences customarily imposed for offences against s 320(4) of the Criminal Code. The appellant refers to only one case, which had been cited by the prosecutor at sentencing, for the purpose of distinguishing it from the present offending.[11] The appellant's submissions accept that sentencing for sexual offending turns on the individual circumstances of each case which can vary widely, so that appellate authorities are of limited assistance.
[11] OMC v The State of Western Australia [2023] WASCA 86.
The factors relied on by the appellant generally concern the absence of additional aggravating features of the offending. The appellant's counsel notes that the offending charged in count 2 involved a 'de‑escalation of offending from Count 1',[12] did not involve grooming or violence or persistence after the complainant retreated and did not involve the appellant approaching the complainant. However, the absence of these factors which would have increased the seriousness of the indecent dealing offence do not deny the seriousness of the offence which was committed.
[12] Appellant's Case filed 12 December 2024, par 27.
In all of the above circumstances, the individual sentence of 14 months' immediate imprisonment imposed for count 2 cannot be regarded as unreasonable or plainly unjust.
Ground 2: totality
As to ground 2, the two offences occurred on separate occasions and, as the trial judge correctly recognised, a degree of accumulation of sentences was required to reflect the overall criminality involved in the offending. The attempted sexual penetration offence was a serious example of that kind of offence, involving the appellant pressing his penis against the mouth of the sleeping complainant. The appellant persisted with the attempt despite the complainant's resistance. The offence was aggravated by the particular vulnerability of the complainant in this situation, as well as the familial relationship and significant age difference between the appellant and the complainant.
In our view, the total effective sentence of 3 years 6 months' immediate imprisonment bears a proper relationship to the overall criminality involved in both offences viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally) and all relevant sentencing factors. The total effective sentence was not arguably unreasonable or plainly unjust.
Orders
For the above reasons, neither ground of appeal has any reasonable prospect of succeeding. The following orders should be made in this appeal:
1.Leave to appeal is refused on both grounds of appeal.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
29 JANUARY 2025
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