KS v The State of Western Australia
[2011] WASCA 85
•7 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 85
CORAM: McLURE P
NEWNES JA
HALL J
HEARD: 17 FEBRUARY 2011
DELIVERED : 7 APRIL 2011
FILE NO/S: CACR 21 of 2010
BETWEEN: KS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 50 of 2010
Catchwords:
Criminal law - Appeal against sentence - Sexual offences - Whether a failure to take into account voluntary disclosure of offences - Whether error in finding of attempt to shift blame - Whether sentences manifestly excessive
Legislation:
Sentencing Act 1995 (WA), s 7, s 8(4), s 25(1)
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr R G Wilson
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AB v The Queen (1999) HCA 46; (1999) 198 CLR 11
Law v The State of Western Australia [2009] WASCA 193
LJP v The State of Western Australia [2010] WASCA 85
R v Engert (1995) 84 A Crim R 67
Riggall v The State of Western Australia [2008] WASCA 69
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Schriever v The State of Western Australia [2008] WASCA 133
Simon v The State of Western Australia [2009] WASCA 10
Wheeler v The Queen [No 2] [2010] WASCA 105
McLURE P: I agree with Hall J that the appellant's appeal against sentence should be allowed and his total effective sentence reduced from 4 years and 8 months to 3 years' imprisonment. I can shortly state my reasons for that conclusion as all the relevant background material is detailed by Hall J.
The appellant was convicted of three counts of indecent dealing (counts 1, 2 and 3), for which he was sentenced to 12 months' imprisonment on each count, and two counts of sexual penetration (counts 4 and 5), for which he was sentenced to 2 years and 8 months' imprisonment on each count. The sentencing judge ordered that the sentences on counts 1, 3 and 5 be served cumulatively and that the other sentences be served concurrently, resulting in a total effective sentence of 4 years and 8 months.
The offences committed by the appellant are undoubtedly serious, involving as they do a gross breach of trust. On the other hand, there were a number of mitigating factors in this case, the most significant of which were the appellant's fast‑track plea of guilty, which ordinarily attracts a sentencing discount of between 25% ‑ 35%, and his voluntary disclosure of offences which were otherwise unlikely to be discovered by investigating authorities. Ordinarily, voluntary disclosure of this nature would attract a further significant discount: Ryan v The Queen (2001) 206 CLR 267; LJP v The State of Western Australia [2010] WASCA 85.
I am satisfied from reading the sentencing judge's reasons as a whole that he did not give any discount for the voluntary disclosure of offences. I rely on the following matters for that conclusion. First, the one‑third discount given by the sentencing judge for all mitigating factors is explicable solely on the basis of the appellant's fast‑track plea of guilty, his lack of prior offending, and his otherwise good character confirmed in the references supplied to the court and the sentencing judge's assessment that the appellant was at a low risk of re‑offending. Secondly, if a mitigating factor results in the court reducing the sentence it would otherwise have imposed, the court must state that fact in open court: s 8(4) of the Sentencing Act 1995 (WA). The sentencing judge did not expressly state that he had reduced the sentence because of the appellant's voluntary disclosure of offences. Thirdly, a number of the findings made by the sentencing judge appear to be directed towards neutralising the significance of the voluntary disclosure.
The sentencing judge found that the appellant did not take complete and full responsibility for his offending and did not fully empathise with the victim. I would categorise those matters as going to mitigation, proof of which is on the appellant on the balance of probabilities. The basis for these findings is that the sentencing judge 'discerned a tendency' on the part of the appellant to attribute some degree of initiating behaviour to the complainant and to attempt to share the blame for what happened with the victim.
I do not understand the sentencing judge to have found that the appellant falsely misstated the contextual facts or events leading to his offending. Rather, I infer the sentencing judge concluded that the appellant's intent in his statement of the facts was to attribute some responsibility to the complainant for initiating the appellant's offending and thereby share the blame for it. It can only be the latter, there being no challenge to the appellant's evidence of the events as they occurred. The issue being one of intent, there were two alternatives: the appellant either intended to share the blame for the offences, or intended to explain the circumstances in which he came to act as he did while accepting full legal and moral responsibility for what had occurred. The appellant's conduct and statements in his interview with police are only consistent with the latter interpretation and there was nothing in the psychological or other reports to suggest otherwise. In my view, it was not open to the sentencing judge to find that the appellant did not take complete and full responsibility for his offending and did not fully empathise with the complainant.
The sentencing judge also found that the appellant 'targeted' the victim. It is unclear whether the sentencing judge was making a finding of intentional grooming, which is an aggravating factor, or a more benign finding of conduct that, viewed objectively, had that effect. In my assessment, the evidence is incapable of establishing beyond reasonable doubt that the appellant targeted the complainant with the intention of engaging in sexual misconduct.
Although grounds of appeal 1 and 2 do not themselves give rise to an appealable error, they are relevant to ground 7, as are the errors that I have identified. Having regard to the formulation of the grounds of appeal, I would uphold ground 7 and conclude that the individual sentences are manifestly excessive, which has a flow on effect on the total sentence.
There is no merit in the other grounds of appeal pressed by the appellant for the reasons given by Hall J. However, as the appeal has been successful and this court is required to resentence the appellant, it is appropriate to have regard to the additional material relating to the
appellant's claim that he suffers from Asperger's syndrome. The relevance of a mental condition in the sentencing process was canvassed in Wheeler v The Queen [No 2] [2010] WASCA 105. Assuming the appellant does suffer from Asperger's syndrome, I am not persuaded that the condition reduces his moral culpability for the offending or otherwise materially affects the outcome of the sentencing process.
The application of the sentencing principles to the offences of which the appellant has been convicted are well‑known: Simon v The State of Western Australia [2009] WASCA 10; Riggall v The State of Western Australia [2008] WASCA 69. Having regard to the source and extent of the relationship of trust between the appellant and the complainant, the complainant's youth and the impact of the offending on him, I am satisfied that a sentence of immediate imprisonment is the only appropriate sentencing option. However, the mitigating factors in this case justify a reduction in the length of the otherwise appropriate terms of imprisonment. The appellant's fast‑track pleas of guilty, his voluntary disclosure of offences which were otherwise unlikely to be discovered, his lack of prior offences, his prior good character and his remorse and acceptance of responsibility have resulted in a reduction in the sentences I would otherwise have imposed. I would sentence the appellant to 8 months' imprisonment on each of counts 1, 2 and 3 and 20 months' imprisonment on each of counts 4 and 5. I would not alter the order that the sentences on counts 1, 3 and 5 be served cumulatively, with the other sentences to be served concurrently, resulting in a total effective sentence of 3 years' imprisonment. The appellant will be eligible for parole after serving 18 months.
NEWNES JA: I agree with McLure P.
HALL J: On 11 February 2010 the appellant pleaded guilty to three counts of indecent dealing with, and two counts of sexual penetration of, a child over the age of 13 years and under the age of 16 years. He was sentenced to a total effective term of 4 years and 8 months' imprisonment with eligibility for parole. He seeks leave to appeal against that sentence in respect of a number of grounds. The application for leave to appeal was referred to the hearing of the appeal.
Background
The offending occurred in early 2009. At that time the appellant was a schoolteacher. He was also a long term member of a church congregation. He undertook voluntary work in respect of the church as a
'teacher's quorum advisor' to male church members aged between 14 and 15 years.
The complainant, J, was 13 years old at the time of the first offence. J's family occasionally attended the church at which the appellant was a parishioner. J's mother was a single parent and in order to ensure that he and his brother attended church more regularly the appellant offered that they could stay at his house from Friday to Sunday each week. Initially these visits were part of the youth activity programme run by the church. However, over time J and his brother stayed with the appellant at his residence outside of the church‑run programmes.
On an unspecified weekend between January and April 2009 J was in the appellant's bed in the master bedroom of the house. The appellant placed his hands inside J's underwear and fondled his penis for several minutes. This conduct constituted count 1 of the indictment.
On another unspecified weekend between January and 2 April 2009 J was again in the appellant's bed when similar fondling occurred. This conduct constitutes count 2 of the indictment.
On a further unspecified weekend in the same period J was in the lounge room of the house watching television. The appellant began to massage J and whilst doing so placed his hand inside J's underwear and fondled his penis for several minutes. This stopped when J's brother entered the room. This conduct constitutes count 3 of the indictment.
Early one Saturday afternoon on an unspecified date between January and May 2009 J was on the appellant's bed in the master bedroom. The appellant removed J's pants and underwear and performed fellatio on him for several minutes. This occurred sometime shortly after J's 14th birthday. This conduct constitutes count 4 of the indictment.
Later the same evening J and the appellant were again on the bed. The appellant removed J's pants and underwear and performed fellatio for a second time. This conduct constitutes count 5 of the indictment.
On 8 June 2009 J was interviewed. In that interview J said that he had woken up one morning in the appellant's bed with the appellant's hand down his pants. He said:
… I think it was ‑ ‑ um - I think it was about 6 o'clock when I woke up with his hands down my pants.
Q. Okay. So ‑ ‑ um ‑ ‑ when you woke up, what could you feel when you said his hands were down your pants?
A. Um ‑ ‑ nothing. He wasn't touching me. It was just sitting there.
Q. So where exactly was his hand sitting?
A. Um ‑ ‑ just before my private.
Q. Just to make sure we're all talking about the same thing, do you have another name for your private?
A. Um ‑ ‑ penis.
Q. Okay. So when you say that his hand ‑ ‑ his hand was sitting just before your private, where exactly was his hand?
A. Like here; like just there.
Q. Can you use your words for me, for the camera? Do you know what part ‑ ‑
A. Um ‑ ‑ um ‑ ‑ near my bladder.
Q. What was his hand doing?
A. It was just sitting there.
Q. Okay; and ‑ ‑ um ‑ ‑ then how long ‑ ‑ when you woke up, what happened?
A. I took his hand out of my pants, and he hopped out … (indistinct) …
Q. And did you say anything to him?
A. Um ‑ ‑ no. He was asleep.
J later clarified that the appellant's hand was 'just sitting there, like it wasn't moving or anything'. He said he did not know how long the appellant's hand had been there because he had been asleep. He later told his mother about this incident. He was asked whether anything like this or similar had happened with the appellant before and he answered no.
The police interview with the appellant
The appellant was interviewed by police on 11 September 2009. At the commencement of the interview the police said that it was alleged that the appellant had indecently dealt with J by placing his hand inside J's pants and underwear near his genital area. That allegation was clearly based upon J's earlier interview with the police. In response, the appellant said:
Ah, there's no point in denying I ‑ it's exactly what I did. No excuse for it, ah, yes it happened, there's nothing I can say, there's no reason to deny it, that's exactly what I did.
The appellant was then asked to explain his relationship with J. He referred to being an advisor at his church with responsibility for 14 to 15 year old males. He said that J and his brother started to stay over at his house at his suggestion so that he could ensure that they attended church. He said that they would play board games and watch movies and that his son was usually present too. He said that occasionally while watching television J would ask for a massage and it originally started off with a foot massage and 'just went further than it should'. He accepted that he placed his hands inside J's pants. He said that there was no excuse for it and that he profusely apologised to J subsequently. He said he was utterly repulsed by what he had done and wished to confess both to the police and his church leaders.
He said that initially J and his brother would sleep on the floor either in the appellant's son's room or his own room. However, he said that on some occasions J would get into his bed and sleep there without being invited to do so because he said it was more comfortable. The appellant then said that he thought that there were one or two occasions when he could recall he put his hands into J's pants as a result of him being in the bed. He was asked whether he touched J's penis and he said that he did. He said that the touching involved rubbing but that no ejaculation was involved. When asked how many times this had occurred he said:
I recall probably 3, I think there was, ah, one when during the massage and there were 2, ah, similar after in the bed.
The appellant was then asked:
Q. Other than the offence you've spoken about today ‑ ‑ ‑
A. Right.
Q. ‑ ‑ ‑ has there been anything else that you need to tell us ‑ has (indistinct) any other contact offences?
A. Ah, yes there are, um, the worst ‑ the worst of it is, um, that there were 2 occasions on one day where I don't know if [J] ‑ [J] mentioned this but I'm not gonna hide anything, um, ah, I, um ‑ ‑ ‑
Q. Just take a minute to (indistinct) head (indistinct) ‑ ‑ ‑
A. Mm.
Q. ‑ ‑ ‑ yeah, I know ‑ I know this is difficult for ya but, um, just take your time?
A. Okay. I took [J's] penis into my mouth.
Q. Okay.
A. And that's ‑ that's the worst of it, ah, there was ‑ as I say there was no ejaculation anything that was ‑ that ‑ that is the absolute worst of it, I'd never done any sex thing like that before, never done anything like ‑ any inappropriate contact, ah, male or female, ah, I have never elicit sex ‑ sex outside marriage, ah, this is the only occasion where there has been anything that is in like this and that may have been the straw that broke the camel's back as far as [J] and I ‑ I.
Q. Um, so was this before or after the, ah, the touching?
A. Oh, this was after (AB 151).
The appellant said that it was after these last incidents that he profusely apologised to J. He said he came to his senses after that and realised what he had done was very serious. He said that the incidents of fellatio had occurred when he and J were 'wrestling or rough housing' which then progressed to him removing J's pants and engaging in the acts described. He said that no force was involved, but did not proffer this as an excuse for his actions. The second act occurred later the same day and in similar circumstances. He said that each incident lasted a few minutes.
Towards the end of the interview the appellant was asked whether there was anything else he wished to add. He said:
A. Yeah, well I know that I have said everything and I know that it's not a case of we're your hold ‑ your holding card that [J] said that I did because I know there are no other cards that's everything, there's ‑ I mean if he would have said everything and he may not even said you know about the oral, um, or whether he did or not I don't want that, you know to be something where because, ah, it ‑ that, you know that ‑ it ‑ it serious, I don't want to say you know partially what I've done that's everything, ah, why say little and then have to say a little bit later ‑ ‑ ‑(AB 165).
The appellant's personal circumstances
At the time of sentencing the appellant was 58 years of age. He had been married twice but was not in a relationship at the time of the offending. He was the father of two children from his first marriage, the younger of whom, a boy of 17, was living with him.
The appellant was born in the United States and had undertaken his education there. He trained as a teacher and came to Australia as a young adult. He had been a teacher for over 30 years and had also been involved in scout and summer camp activities. He had no criminal record and there was no suggestion that he had ever been guilty of any impropriety in the course of his teaching.
Immediately after being charged the appellant had voluntarily consulted a psychologist, Ms Margaret Cherubino. He had undertaken a course of counselling with Ms Cherubino who produced a report for the court. There was also a report from another clinical psychologist, Dr Phil Watts, who had counselled the appellant in the past in relation to issues arising from a marriage breakdown. There was also a court ordered psychological report from Ms Mary‑Anne Martin.
In her report of 21 January 2010 (incorrectly dated 2009) Ms Cherubino said that the appellant had told her of an incident of being fondled and another incident of game playing involving the genitals when he was a young teenager. Both of these incidents involved males of a similar age. Ms Cherubino's report refers to these incidents as involving adult males but that was later corrected in a subsequent report. The appellant placed some emphasis on this difference but it is difficult to see that it could have any significance in the sentencing exercise.
Ms Cherubino concluded that whilst the appellant did not appear to have doubts about his sexual orientation, there may be some level of deeply repressed same‑sex attraction. She said that for the most part he tended to control his sexual urges but appeared to have taken advantage of an opportunity when it presented itself and then judged himself harshly. Ms Cherubino said that the appellant had felt guilt and shame in respect of the incidents that had occurred in his youth and also the events involving the complainant. She said, however, that he felt a sense of resolution in having confessed what had occurred both to the police and his church leaders. She said that the appellant appeared rather naive as to the consequences of his behaviour with respect to the indecent dealings and that this suggested that he was a man who was psychologically vulnerable.
Dr Watts provided a report dated 26 January 2010. He said that the appellant had an intense and obsessive personality. He said that clinically the appellant presented as somewhat personality disordered, particularly in regard to emotional dimensions. He said that this had caused him to consider whether the appellant had Asperger's Syndrome type traits, if not Asperger's disorder. He explained that this was a type of high functioning autism where people can be quite intelligent and functional but have poor social abilities and obsessive interests. There was no suggestion how, if at all, such traits might have contributed to the offending behaviour.
Dr Watts thought that it was noteworthy that the appellant described the complainant as reminding him of himself when he was young. He said that the possibility that the appellant was acting out what had happened to him in his youth was quite probable. Dr Watts concluded that the appellant had a somewhat vulnerable and unusual personality structure. He said that the offences appeared to relate to unresolved childhood issues. He was of the opinion that the appellant should undergo a medium level sex offender course and that he would benefit from personal counselling. He said that he considered the appellant to be a relatively low risk offender in that there had been no predatory pattern or previous preoccupation with boys of this age.
Ms Martin provided a report dated 21 December 2009. In it she said that the appellant presented as being overly analytical about himself and his life. She said that her impression was that he had relatively good insight into how he came to offend but his belief in the power of prayer to prevent himself being tempted again was flawed. She said that the appellant was clearly remorseful and acknowledged guilt for what he had done. Ms Martin undertook a risk assessment and concluded that the appellant was a low to moderate risk for sexual reoffending. She also said that the appellant had 'relatively good insights into the precursors for his offending although his belief that he can pray to negate his risk is risky'.
A presentence report dated 21 January 2010 was provided to the court. That report concluded that the appellant had accepted responsibility for his offending and had expressed remorse and shame. It noted that the appellant was a first time offender and that these convictions had ended his teaching career and his standing within the church. The report noted the appellant's immediate accessing of private psychological counselling and his 'keen desire to understand his offending behaviour'.
The presentence report noted that during the interview the appellant had conceded that he failed to heed a number of crucial warning signs during his contact with the complainant. The most important of these were not ensuring that another adult was present, not taking appropriate action when he discovered that the complainant had accessed a pornography site on his computer and agreeing to provide a foot and then back massage to the complainant given that physical contact in these circumstances was fraught with danger for someone in his position.
The appellant produced a number of favourable character references. He also provided to the sentencing judge a letter of apology written to the complainant's mother which he had previously been unable to convey due to restrictive bail conditions.
Sentencing remarks
Having referred to the facts of the offending the sentencing judge noted that full admissions were made when the appellant was interviewed by the police. His Honour said in this regard:
In fact, you provided information to the police over and above what had been provided to them, as I understand it, by the complainant.
And it was, in large part, based upon the information that you, yourself had provided, which framed the indictment that's before the court today (AB 101).
His Honour then turned to the appellant's personal circumstances and the reports that he had received. His Honour noted that in Ms Martin's report the appellant had said that he had awoken one night to find the complainant's hand on his penis, that he felt confused but engaged in mutual fondling, that this had happened on a few occasions and had culminated in the performance of oral sex.
His Honour also referred to references by the appellant in his interviews with the report writers to pornography having been accessed via the internet by the complainant. His Honour then said:
I have to say, having read all three reports, that generally speaking I discern a tendency on your part to attribute to some degree initiating behaviour to the complainant.
You say you have a good set of morals and that your faith provided you with a degree of protection. I accept that that may be so but, as I say, I do discern a tendency to share the blame for what happened with your much younger victim.
The pre‑sentence report concludes that you have accepted responsibility for your offending and, as Mr Hockton has said to me, have expressed remorse and shame for the events the subject of the indictment.
You do tend, on the other hand, to rationalise what happened and to couch your acceptance of responsibility in terms which in truth, to my way of thinking, aren't necessarily a complete or full acceptance of responsibility.
The author of the pre‑sentence report conceded, for example, that you claimed to have failed to heed a number of crucial warnings or warning signs during your contact with the complainant.
They included not ensuring that another adult was present when he and his brother stayed over at your home, not taking appropriate action when you discovered that he'd accessed a pornography site on your computer and agreeing to provide a foot and back massage to him, noting that any physical contact in those circumstances was fraught with danger for someone in your position.
It strikes me that the proposition that you agreed to provide a foot and back massage is laced with the proposition that it was he rather than you that initiated those events and that had he not done so, the events the subject of the indictment would not have happened at all. The same applies to the revelation to Ms Martin that he initiated sexual contact with you in your bed without your knowledge, you being asleep at the time.
In that context I don't accept that you fully empathise with the victim. Rather, to my way of thinking, you do tend to attempt to share responsibility with him (AB 102 ‑ 103).
His Honour then referred to the reports of Ms Cherubino and Dr Watts and their conclusion that the appellant had compulsive obsessive tendencies. He noted Ms Cherubino's conclusion that the appellant was the product of a sexually repressed background and that the appellant had 'difficulty controlling sexual urges such that when the opportunity presented itself (he) took advantage of the situation'. I would note that insofar as this appears to suggest Ms Cherubino was of the view that the appellant generally had difficulty in controlling sexual urges it is not an accurate reflection of her report. His Honour noted that Dr Watts had concluded that the appellant appeared to be a relatively low risk of re‑offending.
His Honour then referred to a victim impact statement from the complainant. His Honour noted that the complainant's assessment was that the appellant had targeted him. His Honour said that the complainant appeared 'at least in part, if not completely, to be correct in that regard'. He noted that of the three brothers, the complainant was the one who continued to attend at the appellant's house.
His Honour then said:
According to Ms Martin, you present as a low risk or low to moderate risk of sexual re‑offending, but she does add the rider that your belief in prayer and faith as a preventative mechanism is, as she describes it, a risky strategy.
I accept fully that you have no prior convictions of a similar nature. I don't necessarily accept that there has never been any grooming of the complainant. It does seem to me that the complainant is correct in his assessment that you targeted him.
To offer support to this family to effectively, as you thought, present yourself as a father figure in itself, I think, was a matter of some comfort to the complainant, initially his brothers and their mother. It may be that there wasn't grooming in the sense of showering them with gifts and enticements and the like, but you did place yourself in a position where undoubtedly at least the complainant over a long period of time went to your house and stayed, more often than not sleeping in your bed, on weekends.
In that situation the complainant's mother placed an enormous amount of faith and trust in your personal makeup. As it turned out, you breached that faith and trust (AB 104).
His Honour concluded by saying that he accepted that the appellant was a low risk of re‑offending but that the nature of the offending was such that it must receive a term of imprisonment to be immediately served. He noted the need for general deterrence and that the offending occurred whilst the complainant was under the appellant's care. He said that for each of the counts of indecent dealing he would have imposed a sentence of 18 months' imprisonment but would reduce that to 12 months having regard to the plea of guilty and to matters personal to the appellant. In respect of the two counts of sexual penetration his Honour said that these were much more serious offences and that he would have imposed a term of 4 years but for the plea of guilty and matters personal to the appellant. For those reasons he reduced the sentences on those counts to 2 years and 8 months. Having regard to the totality principle his Honour considered it appropriate to employ some degree of concurrency. He therefore made the sentences on counts 2 and 5 concurrent producing an effective total sentence of 4 years and 8 months.
Grounds of appeal
The grounds of appeal are as follows:
1.The learned sentencing judge erred in law by failing to adequately take into account the Appellant's voluntary disclosures in relation to the offending in his police video record of interview.
2.The learned sentencing judge erred in law by failing to adequately take into account the Appellant's acceptance of responsibility and remorse as expressed in his police video record of interview, to the court ordered presentence report author, court ordered psychologist, the Appellant's presentence report author, and the Appellant's psychologist.
3.The learned sentencing judge erred in fact in finding that the offences occurred over a span of five months.
4.The learned sentencing judge erred in law by failing to adequately take into account the good character of the Appellant.
5.The learned sentencing judge erred in fact by introducing a misunderstood point in regards to the Appellant's prayer beliefs, the subject of which was not mentioned by the DPP.
6.The learned sentencing judge erred in his findings as a result of errors, misunderstandings or misinterpretations emanating from Margaret Cherubino's Psychological Report, Mary‑Anne Martin's Psychological Report and statements made by the DPP as contained in the two psychological reports.
7.The learned sentencing judge erred in fact by imposing a sentence which was manifestly excessive with regard to the factual circumstances of the Appellant and sentencing standards.
8.The learned sentencing judge erred in fact by determining the sequence of offences from misinterpretations, misunderstandings and/or errors by the Appellant, the police and/or the DPP.
9.The learned sentencing judge erred in fact by frequently expressing his viewpoint which was contrary to the Appellant's stated confessions.
10.The learned sentencing judge erred in fact by failing to take into consideration the possibility that the Appellant suffered from Asperger's Syndrome, as stated and described in Dr Watt's pre‑sentence report, and described by examples in Mary‑Anne Martin's Psychological Report (AB 30).
On the hearing of the appeal the appellant stated that he wished to withdraw grounds 5 and 9 and made no submissions in regard to them. He also sought to add an additional ground, being that there was a miscarriage in the sentencing exercise due to the alleged incompetence of defence counsel. I will refer to this as ground 11.
There was very considerable overlap between the grounds. Allowance must be made for the fact that the appellant represented himself on the appeal and was not legally trained. Whilst I will deal later with the grounds individually, there were two significant issues that arose. First, whether the sentences imposed were excessive having regard to the voluntary disclosure to the police by the appellant. Second, whether the sentencing judge erred in finding that the appellant had attempted to shift blame to the complainant and had targeted him.
Voluntary disclosure
An offender who confesses to a crime is generally to be treated more leniently than one who does not. That is not to say that all admissions of guilt have the same value. The disclosure to the authorities of otherwise unknown offences can have significant weight. One important feature of such a disclosure is that it may evidence a genuine acceptance of responsibility and contrition on the part of the offender.
In AB v The Queen (1999) HCA 46; (1999) 198 CLR 111 Hayne J (in dissent in the outcome but similar comments were made by the majority) said:
An offender who confesses to crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known. Leniency is extended to both offenders for various reasons. By confessing, an offender may exhibit remorse or contrition. An offender who pleads guilty saves the community the cost of a trial. In some kinds of case, particularly offences involving young persons, the offender's plea of guilty avoids the serious harm that may be done by requiring the victim to describe yet again, and thus relive, their part in the conduct that is to be punished. And the offender who confesses to what was an unknown crime may properly be said to merit special leniency. That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition.
These considerations are well known and well accepted. They were noted in R v Ellis, the case to which the primary judge referred in his sentencing remarks. In Ellis, Street CJ said:
'This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.' [113] ‑ [114].
In Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 McHugh J said that Ellis should not be seen as requiring that there be a discount given for a voluntary disclosure of an offence and then a further discount given in circumstances where that disclosure was of an offence that was unlikely to be discovered by the authorities. Rather, it was a matter of recognising that some confessions had greater mitigatory weight. His Honour said in this regard:
The statement in Ellis that 'the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency' is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case [15].
In the same case Kirby J said:
Clearly, it is in the public interest that the law should encourage offenders to acknowledge, and bring to official notice, offences not previously known to the authorities. In part, this interest derives from the saving of costs in the investigation and prosecution of criminal offences. In part, it is because it helps to improve the clear-up rate for crimes and vindicates the public process of punishing and deterring crime. These considerations were referred to in AB v The Queen.
The applicable public interest also includes a growing concern of modern criminal law and practice with a consideration that is of particular relevance to a case such as the present. I refer to enlarged attention to the position of the victims of crime. A confession by an offender allows a victim a public vindication. In the particular matter of serial criminal offences against children and young persons, a confession by the offender may also facilitate the provision, where appropriate, of community assistance to the victim or the payment of compensation and an extension of greater family understanding and support. ...
Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is, likewise, one of the objectives of criminal punishment and thus of judicial sentencing.
In R v Ellis it was said that a 'considerable' or 'significant added' element of leniency is required in sentencing an offender in respect of offences disclosed that were otherwise unknown to the authorities. It is true that it was accepted in that case that the precise extent of that element will 'vary according to the degree of likelihood of that guilt being discovered ... [and] guilt being established' against the person concerned [92] - [95].
Kirby J went on to note in Ryan at [96] that the appellant's confession in that case was simply considered in the context of the discount to which a prisoner is ordinarily entitled for a guilty plea. There was no indication that the considerable or significant added leniency referred to in R v Ellis had been accorded to the voluntary disclosure of otherwise unknown offences that had been made in that case.
In LJP v The State of Western Australia [2010] WASCA 85 the appellant was charged with five counts of indecently dealing with a child under the age of 13 years and one count of sexual penetration of the same child. Whilst there was a range of relevant sentencing factors, one of the most significant was that the appellant had made voluntary disclosure of a number of the offences. When initially interviewed the appellant in that case had admitted four occasions of indecent dealing. The complainant was subsequently interviewed and referred to only two occasions, one of which correlated to one of the incidents admitted to by the appellant. At a subsequent interview the appellant admitted the additional indecent dealing referred to by the complainant but said his memory of that incident was not clear. He was then asked if he had ever had oral sex with the complainant and volunteered that he had on one occasion.
Buss J said in LJP that it was unlikely that the act of penetration would have been discovered by the investigating police was it not for the voluntary disclosure. In his Honour's opinion the appellant in that case was entitled to a significant element of leniency on account of that voluntary disclosure in addition to any other discounts for the plea of guilty at the earliest opportunity and other mitigating factors. Reference was made to Schriever v The State of Western Australia [2008] WASCA 133 in which a voluntary disclosure had also occurred which was said to be deserving of leniency [13] ‑ [14] (Steytler P). His Honour also noted that the physical conduct was not forceful and involved interference at or towards the lower end of the spectrum of seriousness. The offending behaviour extended over a period of about three months but individual counts occupied a very short period of time. His Honour concluded that the sentence of 2 years and 6 months immediate imprisonment on the penetration count should be set aside and replaced with a sentence of 18 months immediate imprisonment.
When the appellant in this case was interviewed on 11 September 2009 there was only one allegation of indecent dealing. That allegation was that the appellant had placed his hands in J's pants. This allegation was clearly based upon J's interview of 8 June 2009. It is noteworthy that even in regard to that allegation, J did not tell the interviewers that there had been any touching of his penis and he also said that he thought the appellant was asleep at the time. On the basis of that interview the possibility of inadvertent touching was open. This is important because it places the confession and disclosure of subsequent acts by the appellant into its proper context.
The appellant immediately confessed to indecent dealing and provided details that had not been revealed by the complainant. He then disclosed other acts including the two incidents of fellatio. It is apparent from the interview that these were entirely voluntary disclosures borne of a desire to completely confess the extent of his actions in regard to the complainant. These disclosures formed the basis of the charges that were preferred against the appellant.
It was suggested by the respondent that the offences disclosed in this case were not ones which could never have been discovered without the co‑operation of the appellant. It was submitted that it was not impossible for disclosure of the offending to have been made by the complainant. That may be accepted, but the fact remains that the complainant had not disclosed the other incidents and there is no reason to believe that they would have in fact come to light but for the confession of the appellant. There may be many reasons why a complainant may not wish to reveal all of the details of sexual offending of which they have been a victim, even assuming that they remember all of those details.
His Honour did refer to the fact that the appellant made full admissions and provided information over and above that which had been provided by the complainant. He also noted that the charges were largely based upon the information provided by the appellant. However, when it came to imposing sentence his Honour referred to a reduction being made by reason of matters personal to the appellant and his plea of guilty but made no specific reference to the significant added leniency that was due as a result of the voluntary disclosures. Furthermore, it is not apparent from the sentences actually imposed that any such allowance was made.
Findings of fact
The law in regard to fact finding on sentence was summarised by Buss JA in Law v The State of Western Australia [2009] WASCA 193 [25] ‑ [34]. A plea of guilty is an acceptance of all the necessary elements of the offence. Where the prosecution alleges aggravating factors and those factors are not admitted by the offender they have to be proved beyond reasonable doubt. Mitigating factors have to be established by the defence on the balance of probabilities.
The contesting of facts or the assertion of explanations or context by an offender does not necessarily indicate a lack of willingness to accept responsibility. In respect of sexual offences it is no doubt true that there are cases where offenders wrongly seek to shift the blame to their victims. This may evidence a refusal to accept full responsibility for their actions. It may also reflect upon the likelihood of re‑offending. However, care must be taken to ensure that all of the relevant evidence is taken into account before concluding that an offender is seeking to shift the blame.
There can be no doubt that a finding that an offender is wrongly seeking to shift blame for the offending is an aggravating factor. As such it would increase the culpability of the offender: s 7 Sentencing Act 1995 (WA). That means that such a finding will weigh in favour of a heavier penalty. That serves to underline the importance of the issue.
Where an aggravating factor relies upon the drawing of an inference from the evidence, consideration must be given to whether it is the only reasonable inference available. This is a necessary corollary to the requirement that aggravating factors must be proven beyond reasonable doubt. The question of what inferences are open requires that regard be had to the evidence as a whole.
In the present case the sentencing judge said that he discerned a tendency for the appellant to share the blame for what happened with the complainant. This was said to be based upon references in the reports to the complainant having initiated one act of touching and to the appellant's home computer having been used by either the complainant or his brother to access internet pornography.
To assume that these statements, even if accurately reported, arose from an attempt to falsely apportion blame to the victim fails to adequately take into account the full extent of what the appellant told the police in his interview. Not only did he disclose previously unknown offences in that interview he also accepted full responsibility for his actions and expressly did not seek to either minimise or excuse them. In particular, he made reference in the interview to the accessing of pornography but denied that in raising that he was seeking to excuse his own conduct. Indeed, it should be noted that the appellant only made reference to the pornographic websites after making voluntary disclosures of all of the offences.
The sentencing judge also referred to the 'warning signs' that the appellant had reported to the presentence report writer. His Honour concluded that the reference to agreeing to provide foot and back massages was 'laced with the proposition that it was the complainant rather than the appellant that initiated those events'. This too appears to have been used by his Honour as a basis for concluding that the appellant was trying to shift the blame. Again, that is not consistent with his interview with the police. The appellant had always maintained that the complainant and his brother had requested massages but had unequivocally accepted that it was inappropriate for him to act as he did. His statement as recorded in the presentence report could not fairly be read as an attempt to minimise his own culpability in these circumstances.
As I have noted earlier, an inference that the appellant was attempting to shift the blame also carried with it the suggestion that the appellant lacked insight and was relevant to the risk of re‑offending. However, the reports had noted that he did have insight, was conscious of risk factors and was a relatively low risk of re‑offending. Thus, that material was also inconsistent with the drawing of such an inference.
The sentencing judge also concluded that the appellant had 'targeted' the complainant. This appears to have been based solely on the victim impact statement. It is understandable that a complainant will ask 'why me' but the expression of a belief that they were targeted has to be viewed in the context of other evidence that may bear on that question. It must also be remembered that the purpose and content of a victim impact statement is to give particulars of injury or damage and to describe the effect on the victim: s 25(1) Sentencing Act 1995 (WA). There was uncontested evidence in the reports that the offences were likely to have been opportunistic in nature rather than the result of a deliberate and planned course of conduct.
In my view, taking into account all of the evidence, and in particular the police interview, it was not open to infer that statements made by the appellant to the report writers were an attempt to minimise the blameworthiness of his own conduct. Nor was it open to draw the conclusion that the appellant had targeted the complainant in the sense described in the sentencing judge's remarks. His Honour's conclusions in that regard clearly influenced his assessment of the appellant's culpability.
Merits of grounds of appeal
For the reasons stated above I consider that there is merit in grounds 1 and 2 of the appeal, though they properly form particulars of ground 7.
As to the remaining grounds they can be dealt with shortly. With respect to ground 3 the sentencing judge did not in fact find the offences occurred over a span of five months. He only referred to the span of dates stated in the charges. It was apparent from the charges that the dates of each incident were unknown and were said to have occurred on a date unknown between January and May 2009. In repeating that span of dates his Honour did not suggest that the offending had continued over a five month period.
As to ground 4 his Honour had the benefit of several reports and detailed submissions on sentence. The significance of prior good character is significantly reduced in respect of sexual offences relating to children. His Honour referred to the appellant's prior good character, his lack of prior record and his character references. In my view it has not been established that the sentencing judge failed to take into account the appellant's good character.
As to ground 6 the appellant submitted that there was an error in Ms Cherubino's report in regard to whether the incident that occurred in his youth was with an adult or a male his own age. Ms Cherubino has subsequently indicated that due to a misunderstanding she may have reported this matter incorrectly in her report. In my view, even accepting that there was such an error, it was not a matter that was likely to have had any effect upon the sentences imposed.
As regards ground 8 the appellant argued that the sequence of indecent acts was misconstrued, that is, whether the touching following the massage that occurred in the lounge room was before or after the two incidents that had occurred in the bedroom. The sequence as referred to by the sentencing judge was that the two incidents in the bedroom had occurred first and related to counts 1 and 2 of the indictment. This reflected the statement of facts read to the court and accepted on the appellant's behalf. In these circumstances there appears to be no basis for this ground. However, even if the sequence of these events was different it is not reasonable to suppose that it would have had a material effect on the outcome.
As regards ground 10 the only reference to Asperger's Syndrome in the material before the sentencing judge was in the report of Dr Watts. As I have previously noted that report merely included a comment as to the possibility that the appellant suffered from Asperger's Syndrome. There was no diagnosis to that effect nor any suggestion as to the impact such a syndrome would have had upon the appellant's conduct. The appellant sought to support this ground by adducing additional material by way of affidavit. That material includes a report from Mr Ryan Jenkins, a psychologist. I will put aside the question of whether there was a proper basis for introducing this new material on the appeal.
Mr Jenkins' report states that the appellant displayed characteristics consistent with Asperger's Syndrome. He advanced a view that the appellant's cognitive processes during the investigation, prosecution and sentencing process could have impaired his ability to communicate effectively. The impact that this could have had upon sentence is not apparent. There is no suggestion that Asperger's Syndrome would have reduced the moral culpability of the appellant in respect of the offences.
It must also be remembered that insofar as mental illness may be relevant as a contributing factor to offending behaviour it can operate both as a factor that reduces moral culpability and as a factor that enhances the need for community protection: R v Engert (1995) 84 A Crim R 67, 71 (Gleeson CJ); Wheeler v The Queen [No 2] [2010] WASCA 105 [7] (McLure P). The former might suggest a lower sentence whereas the latter, a higher sentence. Thus, even if it were to be accepted that the appellant has Asperger's Syndrome and it had a relevant effect on the offending behaviour that would not necessarily result in a lower sentence.
Insofar as ground 10 is concerned it is not apparent that the sentencing judge erred by failing to take into consideration the possibility that the appellant suffered from Asperger's Syndrome. The material before the sentencing judge did not provide an adequate basis for taking such a possibility into account. The additional material provided on the appeal really takes the matter no further. In the circumstances I would not grant leave to rely upon the additional material.
As regards ground 11 there was some attempt by the appellant to argue that the counts on the indictment were different in form than those with which he was originally charged and that he did not intend by pleading guilty to accept the facts as alleged. He asserted that some fault could be ascribed to his counsel in this regard. I should note that the plea in mitigation made by counsel who appeared for the appellant before the sentencing judge appears to have been comprehensive and thorough. As regards the factual basis of the charges, the appellant entered pleas of guilty to those charges and the facts were accepted on his behalf. Those pleas accord with the confession made to the police in the interview. There is no proper basis to now question those pleas.
Conclusion
I would grant leave to appeal in respect of grounds 1, 2 and 7 but refuse leave in respect to the remaining grounds.
I have considered whether a suspended sentence was open and have come to the conclusion that in all the circumstances it was not. Even taking into account the substantial mitigating factors in favour of the appellant the offending was still objectively serious and involved the abuse of a trusted relationship. The offending involved distinct incidents spread over a number of weeks with an increasing level of seriousness culminating in two acts of penetration. There was a substantial age difference between the appellant and the complainant and the offences took place in the appellant's home. For these reasons in my view a suspended sentence would not be appropriate.
I would allow the appeal and resentence in the way proposed by McLure P, resulting in a total effective sentence of 3 years with eligibility for parole.
5
9
1