Ling v The Queen - [2000] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LING -v- THE QUEEN [2000] WASCA 129

CORAM: WALLWORK J
MURRAY J
SCOTT J

HEARD: 3 APRIL 2000

DELIVERED : 12 MAY 2000

FILE NO/S: CCA 263 of 1999

BETWEEN: ANTHONY JAMES LING
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Aggravated sexual penetration - Digital - Sentence of 6 years imprisonment reduced to 4-1/2 years imprisonment - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentence of 6 years imprisonment reduced to a total of 4-1/2 years imprisonment

Eligible for parole

Representation:

Counsel:

Applicant: Mr M T Trowell QC
Respondent: Mr M Mischin

Solicitors:

Applicant: Slee Anderson & Pidgeon
Respondent: State Director of Public Prosecutions

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

Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996
Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995
Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 6 June 1991
Walley v The Queen, unreported; CCA SCt of WA; Library No 8894; 30 May 1991

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Eliasen (1991) 53 A Crim R 391
Estreich v The Queen, unreported; CCA SCt of WA; Library No 950500; 2 August 1995
Hall v The Queen, unreported; CCA SCt of WA; Library No 930135; 2 October 1993
Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
Pearce v The Queen (1998) 72 ALJR 1416
R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999
R v Griffiths [1999] WASCA 23
R v O'Connor (1989) 41 A Crim R 360
R v Pike, unreported; SCt of WA; Library No 8894; 30 May 1991
R v Pinder (1992) 8 WAR 19
R v Podirsky (1989) 43 A Crim R 404
R v Tait (1979) 46 FLR 386
R v Todd [1976] Qd R 21
Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146; 23 March 1999
Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 6 June 1995
Veen v R (No 2) (1988) 164 CLR 472
Woods v The Queen (1994) 14 WAR 341

WALLWORK J: On 10 December 1999 the applicant was sentenced to an aggregate of 6 years imprisonment which term was comprised of one sentence of 4 years imprisonment for aggravated indecent assault on a 15 year old girl and a further concurrent sentence of 6 years imprisonment for a digital penetration of the same child's vagina on the same occasion. The maximum penalty for the first offence provided by the law at the time was 6 years imprisonment. The maximum penalty available for the second offence was 20 years imprisonment.
The applicant was made eligible for parole. He now applies for leave to appeal against the aggregate sentence of 6 years imprisonment.
When sentencing the applicant after a trial at which he had pleaded he was not guilty, the learned Judge said that the offences had taken place at a time when the applicant had been a member of the Australian Army stationed in Perth. He had been 22 years of age at the time and seven years older than the victim who was his sister‑in‑law. She was then 15 years of age.
The facts which had been given in evidence by the complainant were that on a night when she and her mother had been at the applicant's and her sister's home, her mother had gone to bed with a headache. The complainant had been left in the lounge room watching television with the applicant. The complainant's sister, who was the wife of the applicant, was at work. The applicant had smoked some cannabis. He had then physically grabbed the complainant and forcibly touched her on the vagina. He had then inserted two fingers into her vagina. They were the circumstances of the offences.
When sentencing the applicant the learned trial Judge told him that the offences were towards the very top of seriousness. They had involved a breach of trust. Her Honour accepted that the applicant had not used any excessive violence, but said that he had shown no remorse. Her Honour said that she had sat through the trial and had considered the applicant's evidence to be a litany of lies. Her Honour said that that fact was not going to have the effect of increasing the sentence, but it had evidenced a lack of remorse on the applicant's part.
The learned Judge said that she accepted the submission of the applicant's counsel that the offences had been committed in short proximity to one another and that a concurrent sentence was appropriate. Her Honour told the applicant that it appeared from the victim impact statement that due to the offences the 15 year old complainant had gone from a happy, confident, trusting and loving teenager who had been an A‑grade student, to a person who had become depressed, withdrawn and rebellious and did not then do well at school. Her Honour said that the harm to such victims was on‑going. The offences were so serious that imprisonment was the only appropriate penalty. Her Honour said that although the applicant had a prior offence of carnal knowledge which had been committed when he was 19 years of age, that had hardly had any impact on the sentence.
It was submitted for the applicant at the hearing of this application, that at the time the offences were concerned, the complainant had been only three weeks short of her 16th birthday. The applicant had been 22 years of age. The offences had happened approximately 10 years before the convictions. It was said that the applicant had pulled the complainant's boxer shorts to one side and asked her to take off her undies. The complainant had said that she had been scared because the applicant had told her that if she did not do what he asked, he would tell her mother that she had been "slutting up to him". At the trial there had been evidence relating to previous sexual advances by the applicant to the complainant.
It was accepted by the applicant that the complainant had been distressed at the time of the offences and had tried to make a run for it. The applicant had put both hands on her ankles and stopped her from doing that. The complainant had asked him to let her go and to stop. However, he had continued with the offences.
The complainant had said she was short of breath because she was asthmatic and had feared an attack. The complainant's mother had then come out of her bedroom. The complainant had then taken the opportunity to run into the bedroom where her mother had been sleeping. She had climbed into her mother's bed and stayed there. Prior to that time during the visit to her sister's home, she had been sleeping in the lounge room.
It was submitted for the applicant that the sentences individually and in the aggregate, were excessive. It was said that the applicant had a 2 year old son from his relationship with his de facto wife. He was also the father of two girls from his marriage to the complainant's sister. He had lost his first wife in a riding accident in the north‑west.
Counsel for the applicant referred to the decision in Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996, where the offender had been aged 40 with prior convictions for rape and indecent assault. He had pleaded guilty at the earliest opportunity to a digital penetration of the vagina of a 16 year old girl. In that case the learned Chief Justice said:
"Time and again it has been said in this Court that there is no tariff for sexual offences."
The learned Chief Justice referred to the decision of Walley v The Queen, unreported; CCA SCt of WA; Library No 8894; 30 May 1991 where the offender had assaulted a 16 year old schoolgirl by digitally penetrating her. His sentence of 4‑1/2 years imprisonment had been reduced to a sentence of 3 years imprisonment on appeal. The Chief Justice also referred to the decision in Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995 where he had said:
"The general range of sentences commonly imposed for a single act of penile penetration remains of the order of about 6 years depending upon the circumstances. Where the victim is under the age of 16 the general range is of the order of 8 years. Cases of digital penetration have traditionally been regarded as less serious offences calling for lesser penalties."
In Nelson, there had been one count of digital penetration of the vagina of a 15 year old girl. The offender had thrown the 15 year old child onto a bed and held her around the throat causing difficulty with her breathing. Penetration had lasted for a couple of minutes. The offender had had no prior convictions for sexual offences. A sentence of 6 years imprisonment had been reduced on appeal to one of 4‑1/2 years imprisonment.
In the Coulter decision the learned Chief Justice said that that case was not one of a spontaneous offence. It had involved fraudulent and misleading conduct which had been designed to lure potential victims to the applicant's house for the purpose of sexual exploitation. The Chief Justice, with whom Pidgeon and Franklyn JJ agreed, said that the effective sentence of 4 years imprisonment which had been imposed upon the offender for one count of digital penetration after he had lured the 16 year old girl to his home on the pretence of taking photographs for publication in magazines, was appropriate. It should be noted that there had been a plea of guilty in that case on the fast‑track system. The Chief Justice said:
"In my opinion an appropriate starting point for consideration of the appropriate sentence proportionate to the gravity of the offence was a sentence of at least 5 years, if not more. It is clear, as counsel for the Crown has conceded, that the applicant was entitled to a significant discount on account of his early plea of guilty and his ready admission at least of the digital penetration element of the offence in his video record of interview."
In the case of Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 6 June 1991, an effective sentence of 5 years imprisonment for the digital penetration of the vagina of a 34 year old woman while she was asleep was reduced to a sentence of 3 years imprisonment on appeal. In that case in the judgment of the court, it is said at 5 of the reasons:
"From the authorities leading up to and including Walley v R (supra) and generally, it is possible to say that for an isolated act of digital penetration, while probation orders have been imposed on rare occasions, custodial disposition is usual, and terms of imprisonment of up to 3 years have been pronounced. This type of disposition bears appropriate relativity to the sentences of 6 to 8 years commonly imposed for penile penetration of a form which is still referred to in the vernacular as rape."
Their Honours went on to say:
"While it is not possible to settle on a tariff or standard penalty for these types of offences it is necessary for the courts to be sensitive to the need to preserve proportionality or consistency in the sentencing process. Leaving to one side mitigating factors peculiar to an individual case, it is this feature, rather than the identification of a tariff, which makes it possible for an appellate court to review a sentence."
It was submitted for the applicant in this case that both the 4 year sentence and the 6 year sentence were approximately double what they should have been.
In my opinion, although I agree with the learned sentencing Judge that these were most serious offences, the penalties imposed seem to have been substantially more severe than penalties which have been approved of by this Court for similar offences in recent years. Error is therefore revealed and this Court must re‑sentence the applicant.

I would grant leave, allow the appeal and reduce the sentence of 4 years imprisonment for the aggravated indecent assault, for which there was a maximum penalty available of 6 years imprisonment, to one of 2 years imprisonment. I would also reduce the sentence of 6 years imprisonment which was imposed upon the applicant for the aggravated digital sexual penetration to one of 4‑1/2 years imprisonment. I would order that both sentences be served concurrently as did the learned sentencing Judge. I would also order that the applicant be eligible for parole with respect to both sentences.
MURRAY J: I agree with the reasons published and orders proposed by Wallwork J. I have nothing to add.
SCOTT J: I have had the advantage of reading in draft the reasons of Wallwork J. I agree with his Honour's conclusions and have nothing further to add.