LJP v The State of Western Australia
[2010] WASCA 85
•7 MAY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LJP -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 85
CORAM: McLURE P
BUSS JA
JENKINS J
HEARD: 26 MARCH 2010
DELIVERED : 7 MAY 2010
FILE NO/S: CACR 157 of 2009
BETWEEN: LJP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KENNEDY CJDC
File No :IND 1072 of 2009
Catchwords:
Criminal law - Sentencing - Appeal by offender - Four counts of indecent dealing with a child under the age of 13 years - One count of sexual penetration of a child under the age of 13 years - Offending at or towards the 'lower end' of the spectrum of seriousness - Total effective sentence of 3 years' immediate imprisonment -Voluntary disclosure of some offences - Whether any individual sentence was manifestly excessive - Whether suspended imprisonment was appropriate - Whether the sentencing judge failed to take into account the appellant's voluntary disclosure
Legislation:
Criminal Appeal Act 2004 (WA), s 31(3), s 31(4)
Sentencing Act 1995 (WA), s 6(4), s 39(2), s 39(3), s 76
Result:
Leave to appeal on ground 3 refused
Appeal allowed
Appellant re-sentenced
Category: D
Representation:
Counsel:
Appellant: Mr S A Vandongen
Respondent: Mr D Dempster
Solicitors:
Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
Chan v The Queen (1989) 38 A Crim R 337
CJ v The State of Western Australia [2009] WASCA 42
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
R v Ellis (1986) 6 NSWLR 603
R v Liddington (1997) 18 WAR 394
Riggall v The State of Western Australia [2008] WASCA 69
RJB v The State of Western Australia [2009] WASCA 49
Schriever v The State of Western Australia [2008] WASCA 133
Simon v The State of Western Australia [2009] WASCA 10
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v ABM [2004] WASCA 90
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v Johnson [2009] WASCA 224
Vagh v The State of Western Australia [2007] WASCA 17
McLURE P: I differ from Buss JA and Jenkins J as to the appropriate disposition of this appeal. I would allow the appeal, set aside the sentences imposed by the sentencing judge, impose a sentence of 6 months' imprisonment on counts 1, 2 3 and 4, 4 months' imprisonment on count 5, 18 months' imprisonment on count 6 and order the whole of the terms to be suspended for 12 months. The nature of the offences, the circumstances of the offending and all other relevant sentencing considerations are detailed in the judgment of Buss JA. I do not propose to repeat that material unless required for an understanding of these reasons.
I agree that two express errors are disclosed in the sentencing judge's reasons. In particular, it was not open to the sentencing judge to find, first, that the offending had a fairly significant impact on the complainant and secondly, that the complainant was motivated to protect the appellant in his interview with police. Together, the errors are such as to enliven this court's discretion to intervene and re‑sentence on all counts if the court is of the opinion that a different sentence should have been imposed. I am of that opinion.
A review of the sentences customarily imposed for a breach of s 320(2) and s 320(4) of the Criminal Code (WA) confirms that ordinarily a sentence of immediate imprisonment is imposed. However, that does not relieve a sentencing judge of the obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to suspend the term of imprisonment (conditionally or otherwise) or impose another lesser sentence. In rare or exceptional cases, a term of immediate imprisonment is not the only appropriate sentencing option: see CJ v The State of Western Australia [2009] WASCA 42; The State of Western Australia v ABM [2004] WASCA 90; Riggall v The State of Western Australia [2008] WASCA 69; Simon v The State of Western Australia [2009] WASCA 10. Moreover, it should not escape attention that there are many more mitigating factors in this case than for the offending in Dinsdale v The Queen (2000) 202 CLR 321, where the High Court upheld a sentence of suspended imprisonment for sexual offending against a child.
The circumstances of this case, considered as a whole, bring it within the exceptional category. First, the circumstances of the offences are at the low end of the scale of seriousness of offences of the type in question. Secondly, the sentencing judge accepted SafeCare's explanation for the appellant's conduct, which was that:
The most likely psychological explanation for [the appellant's] abusive actions is that, when he was in a state of extreme emotional vulnerability following his breakdown in November 2008, he was triggered into an emotional regression to around age 10 ‑ 11, by becoming aware of his second cousin's interest in sexual development and puberty. This prevented him from dealing with the child's natural interest about these topics in an appropriately adult and responsible way. In fact, his stated immaturity while regressed led him to engage his second cousin in the types of activities and horseplay that he had engaged in as a boy with certain of his cousins and school friends ‑ those who had joined the club of adolescence.
Acceptance of this explanation entails the rejection by the sentencing judge of any intention to groom the complainant. Thirdly, the appellant voluntarily and actively participated in the SafeCare programme which he completed prior to sentencing. According to SafeCare, the appellant was very remorseful, had worked hard in the programme to gain insights into and change his behaviour and was at a low risk of re‑offending. Indeed, the sentencing judge found that the appellant had done everything he could in relation to his rehabilitation (ts 16). Fourthly, the appellant made voluntarily disclosures of the offences the subject of counts 2, 3 5 and 6 of which the prosecuting authorities had no knowledge. It is the case that unknown to the appellant, the complainant's 8-year‑old brother witnessed the conduct the subject of counts 2 and 3. Although the voluntary disclosure of these offences is mitigatory as reflecting genuine remorse and cooperation with police, it would receive less weight than the voluntary disclosures of counts 5 and 6 which would not otherwise have come to light. Finally, the appellant was relatively young at the time the offences were committed, had no prior record of offending and pleaded guilty on the fast‑track system.
The combination of circumstances place this offending in the rare category in which a term of immediate imprisonment is not the only sentencing option. I would order that the terms of imprisonment be wholly suspended with the imposition of conditions under pt 12 div 1 of the Sentencing Act 1995 (WA). As I am in the minority, it is unnecessary to identify the appropriate conditions.
BUSS JA: On 8 February 2009, the appellant was charged with four 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).
On 21 February 2009, he was charged with one further count of indecently dealing with a child under the age of 13 years, and one count of
sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Code.
On 16 June 2009, the appellant entered pleas of guilty to the six charges. He was committed to the District Court for 'fast‑track' sentencing.
On 20 October 2009, he appeared in the District Court and entered pleas of guilty to the six charges which by then had been embodied in an indictment dated 3 August 2009.
The sentencing judge, Kennedy CJDC, sentenced the appellant, as follows:
Count
Criminal Code
Sentence
1.
s 320(4)
6 months
2.
s 320(4)
6 months
3.
s 320(4)
6 months
4.
s 320(4)
6 months
5.
s 320(4)
6 months
6.
s 320(2)
2 years 6 months, cumulative on count 1
TOTAL
3 years, with eligibility for parole
The appellant appeals to this court against her Honour's sentencing decision.
The facts and circumstances of the offending
The appellant was aged between 26 and 27 years at the time of the offending. The complainant, a boy, was the appellant's second cousin. At the time of the offending, the complainant was aged 11 years.
As to count 1 on the indictment, between 30 October 2008 and 24 December 2008, the appellant was looking after the complainant while the complainant's mother was at work. They were seated on a couch in the complainant's home. Each of them exposed his penis and each touched the other's penis.
As to count 2, on a separate date between 30 October 2008 and 24 December 2008, the appellant was again looking after the complainant while the complainant's mother was at work. They were at the complainant's home. Also present in the home was the complainant's younger brother who was then aged 8 years. The appellant attempted to insert his penis into a water balloon while the complainant was watching.
As to count 3, immediately after count 2, the appellant held a water balloon while the complainant attempted to insert his penis into it.
As to count 4, between 30 October 2008 and 1 February 2009, the appellant was looking after the complainant at the complainant's home. The complainant was sitting on his bed reading a book. The appellant entered the room and asked the complainant to show him his penis. The complainant pulled his pants down to his knees, and the appellant placed his hand on the complainant's penis.
As to count 5, on a separate date between 30 October 2008 and 1 February 2009, the appellant was again looking after the complainant, this time at an address where the complainant's mother was house-sitting. The appellant and the complainant were in the swimming pool. Each of them took turns at pulling down his pants and exposing his penis, and ducking under the water to look at the other's penis.
As to count 6, immediately after count 5, the appellant ducked his head under the water and placed the complainant's penis in his mouth for a few seconds before surfacing.
Some other facts and circumstances before sentencing
On 8 February 2009, the appellant was interviewed by police. At the time, the complainant had not yet been formally interviewed. During the interview on 8 February 2009, the appellant admitted indecently dealing with the complainant on four occasions. These occasions were the subject of the four charges laid on that date.
On 11 February 2009, the complainant was formally interviewed. During the interview, the complainant alleged that the appellant had indecently dealt with him on only two occasions. The first of these occasions correlated with the first charge that had been laid on 8 February 2009. The second occasion was not, at that time, the subject of a charge. At the conclusion of the interview, the complainant asserted that nothing else had occurred between him and the appellant.
Later on 11 February 2009, the appellant was again interviewed by police. During the interview, the police put to the appellant the second occasion on which the complainant alleged that the appellant had indecently dealt with him. The appellant admitted this dealing. He said, however, that his memory of the incident was not very clear.
During the interview on 11 February 2009, police asked the appellant whether he had ever had oral sex with the complainant. The complainant had not made an allegation of this nature. The appellant volunteered that he had, on one occasion, put the complainant's penis in his mouth.
I have viewed the video recorded interviews with the complainant and the appellant.
On 12 February 2009, the appellant voluntarily attended at SafeCare Inc (SafeCare) for a 'pre-intake interview'. After the interview, and upon his agreeing to comply with the conditions imposed by SafeCare, the appellant commenced the SafeCare program. He participated actively in this program for about eight months and completed it shortly before he was sentenced.
On 21 February 2009, the appellant was charged with the two further offences.
The sentencing judge's remarks
The sentencing judge referred to the witness statement of the complainant's mother. The mother recounted a conversation she had with the complainant after becoming aware of the offending:
I said, ' … I need to talk about something that's happened, what's this about you showing your willy to adults.'
[The complainant] said, 'I don't want to talk about it.'
I said, 'I know you don't want to but we need to.'
I hadn't actually chatted much with [the complainant] for a while so I lay on the bed next to him and we had a chat about everything in general.
We got on with the rest of the day.
The following morning I was taking [the complainant] to a play date … , whilst driving along with just the two of us in the car, I said, 'I know you don't want to talk about this but I need to know about [the appellant] and you showing each other your willies.'
[The complainant] said, 'I don't want to talk about it, I want to forget about it and get on with my life.'
I pulled up in the street and got out of the car and went to his side of the car and sat next to him and said, 'Sweetheart I know you don't want to talk about it, but we have to talk about it and I need you to tell me the truth.'
I asked [the complainant], 'Did you and [the appellant] show each other your willies?'
[The complainant] said, 'Yes.'
I said, 'Did [the appellant] touch you or did you touch [the appellant's] willy.'
[The complainant] said, '[The appellant] touched mine and he asked if I wanted to touch his, I said no.'
I said, 'Did he touch your bottom?'
[The complainant] said, 'Ewww NO.'
I said, 'Where did it happen? Did it happen at home or in … ?'
[The complainant] said, 'It happened at home.'
I said, 'How many times did it happen?'
[The complainant] said, 'Twice.'
[The complainant] then said, 'Mum, it's not going to happen to [sic] again.'
I said, 'No it's not because I'm not going to let [the appellant] look after you again.'
I said, to [the complainant] that 'it's ok to be curious but [the appellant's] an adult and that's wrong.'
Her Honour said in relation to this conversation between the complainant and his mother:
Now, it is very concerning about this little boy that he did not want to talk about the matter and, according to her statement, when she spoke to him, he said, 'I don't want to talk about it'. And later he said, 'I don't want to talk about it. I want to forget about it and get on with my life'. And then when the police went to him, of course, he didn't tell them the whole story.
And it's an indication of the fact that this had a fairly significant impact on this little boy who was at a very vulnerable age (ts 15).
The sentencing judge said that although it was 'a very serious matter' (ts 15), there was much that could be said in mitigation for the appellant. She referred to a report dated 17 October 2009 from SafeCare, and read this passage from the report:
The most likely psychological explanation for [the appellant's] abusive actions is that, when he was in a state of extreme emotional vulnerability following his breakdown in November 2008, he was triggered into an emotional regression to around age 10 ‑ 11, by becoming aware of his second cousin's interest in sexual development and puberty. This prevented him from dealing with the child's natural interest about these topics in an appropriately adult and responsible way. In fact, his state of immaturity while regressed led him to engage his second cousin in the types of activities and horseplay that he had engaged in as a boy with certain of his cousins and school friends ‑ those who had 'joined the club' of adolescence.'
Her Honour noted that at the time of the offending, the appellant was in 'an emotionally vulnerable state' after his third nervous breakdown and that he was suffering 'a considerable crisis' (ts 16). She said it was to the appellant's credit that he admitted the offending. She added that he was entitled to 'substantial credit for the fact that no one would have even found out about count 6 [the oral sex count] had it not been for the fact that you told them' (ts 16).
The sentencing judge then said:
In one sense, it's a two‑edged sword in that I do give you credit, and anyone would have to give you credit for the fact that you volunteered that information. But it is of great concern that this little boy was so concerned about that, also concerned to protect you, that he wasn't prepared to tell anyone about it (ts 16).
Her Honour considered the appellant was at 'a fairly low risk' of re‑offending (ts 16). He had done 'everything [he could] in relation to [his] rehabilitation, and there [was] a great deal to be said in mitigation for [him]' (ts 16). But, her Honour noted, nothing could outweigh the fact that the appellant was 27 years and the complainant was 11 years, and the offending behaviour went on for a period of time and culminated in fellatio. General deterrence was the most important sentencing consideration.
The grounds of appeal
There are three grounds of appeal.
First, it is alleged that the sentencing judge erred in imposing a term of imprisonment in respect of count 6 on the indictment that was manifestly excessive.
Secondly, it is alleged that the terms of imprisonment imposed in respect of counts 1 ‑ 6 on the indictment were manifestly excessive. It is said that her Honour should have suspended the terms of imprisonment.
Thirdly, it is alleged that her Honour erred in failing to take into account a material consideration, namely, the fact that the appellant had made voluntary disclosures of the offences, the subject of counts 2, 3 and 5, in respect of which the prosecuting authorities had no knowledge.
On 30 November 2009, Wheeler JA granted leave to appeal on grounds 1 and 2. Her Honour referred the application for leave to appeal on ground 3 to the hearing of the appeal.
The merits of ground 1
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error. It does not assert a specific error. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where Gleeson CJ and Hayne J observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].
And see Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 [7] ‑ [8] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Vagh v The State of Western Australia [2007] WASCA 17 [47] (Roberts-Smith JA).
The maximum penalty for the offence of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Code, is 20 years' imprisonment.
It has been observed, frequently and accurately, in this court that there is no 'tariff' for sexual offences. The sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalty. It is important, however, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending. Otherwise, as Steytler P (McLure JA agreeing) pointed out in The State of Western Australia v Akizuki [2008] WASCA 267, there is a risk that sentencing will become idiosyncratic and arbitrary [3].
In Schriever v The State of Western Australia [2008] WASCA 133, the offender was convicted, on his pleas of guilty, of seven counts of indecent dealing with, and two counts of sexual penetration of, a child under the age of 13 years. The offences were committed against two complainants, 'L' and 'J', who were siblings. Steytler P (McLure & Miller JJA agreeing) summarised the offences, as follows:
Counts 1 to 6 related to L. The offences charged in the first three counts were committed on separate occasions between 31 March 2003 and 1 May 2005. Each of them involved the touching of L's vagina by the appellant with his hand. The offences charged in counts 4 to 6 were committed between 29 April 2003 and 31 March 2006. Counts 5 and 6 charged indecent assaults involving the touching of the complainant's vagina by the appellant with his hand. Count 4 was an offence of penetration, the appellant having penetrated L's vagina with his tongue. The complainant was asleep when this offence was committed. The offence only came to light because the appellant voluntarily disclosed it to the investigating officers. L was between 5 and 8 years old when the six offences were committed.
The offences charged in counts 7, 8 and 9 were all committed against J. They were committed on one occasion, somewhere between 7 December 2005 and 31 March 2006. Counts 7 and 8 were charges of indecent dealing. The first of these involved the touching of J's penis and scrotum by the appellant with his hand. The second involved the appellant masturbating J's penis with his hand. The offence charged in count 9 was one of sexual penetration by performing fellatio on J. J was then either 10 or 11 years old [4] ‑ [5].
The sentencing judge in Schriever imposed a sentence of 2 years' immediate imprisonment on count 4 which involved the offender penetrating L's vagina with his tongue while she was asleep. The offending, the subject of count 4, only came to light because the offender voluntarily disclosed it to the investigating police officers. On appeal, this court reduced the sentence on this count from 2 years to 18 months' immediate imprisonment. Steytler P said:
It could undoubtedly not ordinarily be said that, in a case involving an act of cunnilingus committed on a young child, a sentence of 2 years' imprisonment was excessive, even allowing for prior good character and an early plea of guilty: Germain v The State of Western Australia [2004] WASCA 293; Little v The Queen [2000] WASCA 87; and Edwards v The Queen [2001] WASCA 263. What sets this case apart is the fact that the offence only came to light as a result of the appellant's voluntary disclosure, in circumstances in which it could not otherwise have come to light. It is well recognised that, when a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender, a further element of leniency enters into the sentencing decision: R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ, Hunt & Allen JJ concurring); and see also Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [65] (Kirby J); Webb v The Queen [2003] WASCA 266 [38] (Malcolm CJ); R v Brazel (2005) 153 A Crim R 152 [21] (Callaway JA, Batt JA & Williams AJA concurring); and H v The State of Western Australia [2006] WASCA 53 [13] ‑ [14].
In the present case the sentencing judge made no additional allowance for the voluntary disclosure on the part of the appellant, notwithstanding that she mentioned it in the course of her sentencing remarks [22] ‑ [23].
This passage from Steytler P's reasons reflects the policy of the criminal law discussed by Street CJ (Hunt & Allen JJ agreeing) in R v Ellis (1986) 6 NSWLR 603. Street CJ observed:
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 (604).
See also RJB v The State of Western Australia [2009] WASCA 49 [25] ‑ [33] (Owen, Wheeler & Miller JJA) in relation to the application, in the circumstances of that case, of the sentencing principle relating to voluntary disclosure of guilt.
In Schriever, Steytler P reviewed sentences imposed in cases of multiple sexual offending against children where the offending was at or towards the 'lower end' of the spectrum of seriousness. It is useful to reproduce his Honour's analysis of the cases:
An extensive survey of sentences imposed (after making allowance for the operation of the transitional provisions) in cases involving pleas of guilty to multiple sexual offending against children between 1999 and 2005 was conducted in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1. The 'lower end' cases were found to involve [sentences] of up to 2 years and 8 months' imprisonment. The most common sentence was around 6 years and 8 months' imprisonment. In most cases there had been at least one count of penile penetration of a child's vagina or anus. The court (Wheeler, Roberts-Smith and Miller JJA) commented [288] that it had recently been said that there had been a 'firming up' of sentences in cases involving sexual offences against children. The court also remarked [295] that cumulation of sentences was to be expected where there is more than one victim.
More recently, in L v The State of Western Australia [2007] WASCA 186, Miller JA (Pullin JA & Le Miere AJA concurring) reviewed sentences imposed in cases of sexual offending against children that were towards the lower end of the spectrum (most of them involved single offences of indecent dealing). In L, the appellant had pleaded guilty to six counts of indecent dealing with a child under the age of 13 years. Three counts were committed against one child (K) and three against a second child (M). The appellant was the complainants' uncle. He was 35 years old. K was 9 and M was 7. The offences were committed on two occasions a few days apart. The first two offences occurred when the appellant exposed his penis to the two complainants. He asked if they would touch it. K did so. The appellant then placed his penis back in his trousers and told the two girls to say nothing about the incident. The remaining four offences were committed when the appellant again exposed himself to the complainants. He held his penis and urinated in front of them. Then he masturbated in front of them and ejaculated. The appellant had no prior convictions. He was accepted to have been remorseful. After a successful appeal, and taking into account the cases reviewed, he was sentence [sic] to a total term of 2 years' imprisonment, with eligibility for parole.
Other cases involving multiple offending that are of some assistance include Stephenson v The Queen [2001] WASCA 98; Edwards; R v Avery [2002] WASCA 136; Webb; and C v The State of Western Australia [2006] WASCA 261.
Stephenson involved sexual offending against two children, T and E, then aged 8 and 5 years respectively. The complainants were the children of the offender's de facto spouse. The offender was then 29 or 30 years old and was regarded by the children as their father. He was convicted after a trial. The offending against T involved the touching and rubbing of the boy's penis by the offender. The offending against E involved three separate acts of cunnilingus. There was no use of force. After a successful appeal by the offender, he was sentenced to terms of 4 years' imprisonment (2 years and 8 months under the present regime) in respect of each of the offences committed against E and to a term of 12 months' imprisonment (8 months under the current regime) in respect of the offence of indecent dealing with T. Each of the terms imposed in respect of the offences committed against E was ordered to be served concurrently but the term imposed in respect of the indecent dealing with T was ordered to be served cumulatively upon the other terms. This made up a total of 5 years' imprisonment (3 years and 4 months' imprisonment under the current regime).
In Edwards the offender pleaded guilty to two counts of indecently dealing with a child and two counts of sexual penetration of the same child (a girl who had just turned 14). The offender was 31 years old at the time. He had no record of prior sexual offending. The complainant had commenced living with her aunt and the offender, who was the aunt's de facto husband, after an incident in which the complainant's mother had struck her. The offender had, on one occasion, touched the complainant's breasts over her clothing. On another occasion he touched her vagina through her clothing. On a third occasion he penetrated the child by an act of cunnilingus and then proceeded to have penile sex with her. The offender was sentenced to terms of 3 months' imprisonment in respect of each count of indecent dealing, to be served cumulatively upon each other and also cumulatively upon concurrent sentences of 4 years' imprisonment that were imposed in respect of each of the counts of sexual penetration of the child. This gave rise to a total term of 4 years and 6 months' imprisonment (3 years under the present regime). His appeal against sentence was unsuccessful.
Avery involved an offender who had pleaded guilty to 16 charges of sexual offences against a 13-year-old girl. The offences involved three separate incidents. The offender, a 20-year-old man, committed four of the offences on 6 March 2000. He twice handled the complainant's breasts, touched her on the vagina and procured her to touch his penis. Three of the offences were committed on 12 March 2000. These involved the offender touching the child's breasts, procuring her to touch his penis and digital penetration of the child's vagina. The remaining offences were committed on 18 March 2000. On that day there were three occasions upon which the offender handled the child's breasts, one upon which he procured her to touch his penis, three instances of digital penetration of the child's vagina, one of cunnilingus and one of penile penetration of the child's vagina. The relationship between the offender and the child had commenced with a meeting over the internet and there had been an element of grooming behaviour. The offender had no prior convictions and his antecedents were good. No force was involved. For each offence of indecent dealing he was sentenced to a term of 12 months' imprisonment. For each offence of sexual penetration he was sentenced to a term of 2 years' imprisonment. All of these sentences were ordered to be served concurrently. After a successful Crown appeal, the individual sentences were left undisturbed (although that imposed in respect of the offence of penile penetration was regarded as lenient), but the sentences imposed in respect of the offending on 18 March 2000, while remaining concurrent with each other, were ordered to be served cumulatively upon the other sentences, giving rise to a total term of 4 years' imprisonment (2 years and 8 months under the present regime).
In Webb, the offender was sentenced in respect of seven sexual offences against a 14-year-old child (his step-daughter). The offender, who had pleaded guilty, was 38 years old. He had voluntarily disclosed the commission of some offences that had not been mentioned by the complainant. Of the offences charged, five were instances of indecent dealing, primarily involving touching of the complainant's breasts and vagina. There was some degree of force. The remaining counts were counts of sexual penetration, one involving digital penetration and the other involving cunnilingus. The cunnilingus had involved the use of force. The offender co-operated unconditionally with the police investigation and was genuinely remorseful. He was sentenced to terms of 2 years' imprisonment in respect of each of the counts of indecent dealing and to terms of 6 years' imprisonment in respect of each of the sexual penetration counts. Orders for cumulation and concurrency were made such that the total term of imprisonment imposed was 8 years (5 years and 4 months under the present regime). Leave to appeal was refused.
In C, the offender (a 50-year-old man) was convicted, after a trial, on four counts of sexual offences against a child aged 12 or 13. The offender was in a de facto relationship with the child's mother. The first offence involved the rubbing of the child's vagina with the offender's fingers. The second offence was one of digital penetration (following immediately after the first offence). The third offence involved an attempt by the offender to suck the complainant's breast after he had pulled the top of her bathers down. The fourth offence was committed when the offender offered the complainant $50 if she would let him touch her breasts. She refused. After a successful appeal, the offender was sentenced to terms of 18 months' imprisonment in respect of each of the counts of indecent dealing and a term of 2 years and 6 months' imprisonment in respect of the count of digital penetration. Orders for cumulation and concurrency were made which had the effect that the total term to be served was one of 4 years' imprisonment [28] ‑ [35].
In the present case, the appellant's offending in respect of count 6 was, without doubt, serious. The offence was committed when the appellant was looking after the complainant while his mother was at work, there was a substantial age disparity between the appellant (who was aged 27 years) and the complainant (who was only 11), and the offending was not an isolated event.
However, there were some significant mitigating features in relation to the offending behaviour generally and count 6 in particular.
First, the physical conduct of the appellant was not forceful. It involved interference at or towards the lower end of the spectrum of seriousness. Although the offending behaviour generally extended over a period of about three months, the individual counts occupied a very short period of time.
Secondly, the author of the SafeCare report, Ms Janice Paige, set out her opinion as to the likely psychological explanation for the appellant's actions. The sentencing judge read the relevant passage in the course of her sentencing remarks and appears to have accepted it. See [29] above. The prosecutor did not challenge the accuracy or validity of the explanation.
Thirdly, the appellant voluntarily disclosed to police the circumstances of his offending in relation to count 6. It is unlikely that this offending would have been discovered by the investigating police officers. The complainant did not disclose this offence to his mother or police. In my opinion, the appellant was entitled to a significant element of leniency on account of his voluntary disclosure, in addition to any other discounts for his plea of guilty at the earliest opportunity and other mitigating factors.
Fourthly, although an offender's personal circumstances, in the case of sexual abuse of children, do not carry as much weight as they might do in other cases, there were other mitigating factors in the appellant's favour that can, in combination, properly be characterised as unusual. In particular:
(a)As I have mentioned, on 12 February 2009, being the day after his second interview with the police, the appellant voluntarily attended at SafeCare for a 'pre‑intake interview'. He then actively participated in the SafeCare program for about eight months and completed the program shortly before his sentencing.
(b)The SafeCare report noted:
About a week after the incident in the pool, [the appellant's] cousin and her partner came to his home to confront him, and he admitted the abuse to them. He felt suicidal with guilt and remorse about what he had done, and overcome with shame about his mother getting to know. He made plans for suicide, but was discouraged by his family (page 7).
…
[The appellant] makes it clear that he in no way blames anyone but himself for his actions. He came to realise that his response to [the complainant's] questions was inappropriate, and although he may not have realised how abusive his actions really were, he certainly knew that his later sexualised behaviour in the pool should not be happening (page 9).
…
As is evident in the information provided by various members of the SafeCare team, [the appellant] is very remorseful for his deviant behaviour, and the harm that he has done to [the complainant] and his family. He has been highly motivated to change and to ensure that this type of behaviour does not re‑occur. To this end, [the appellant] has worked hard in the SafeCare treatment program and, through his efforts, he has gained insight into his offending behaviour, made credible connections with his childhood experiences, and gathered a range of strategies from his participation in the SafeCare course which he is using to prevent relapse (page 13).
…
[The appellant] accepts responsibility for his offending, is genuinely remorseful, and is prepared to accept whatever penalty is required … (page 13)
[The appellant] says he is keen to continue counselling to further address his psychological problems and emotional immaturity … (page 13).
(c)The offending occurred when the appellant was in a state of extreme emotional vulnerability following his third nervous breakdown in November 2008.
(d)The appellant was assessed as being at a low risk of re‑offending.
(e)The appellant pleaded guilty to all of the offences on the 'fast‑track' system.
(f)As I have also mentioned, her Honour found that the appellant had 'done everything [he could] in relation to [his] rehabilitation, and there [was] a great deal to be said in mitigation for [him]' (ts 16).
Although ground 1, as drawn, relies only on manifest excess and does not allege an express error, in the course of argument before this court the existence of an apparent express error in the sentencing judge's remarks was raised with both counsel for the appellant and counsel for the State. Each of them addressed the point. Her Honour found, on the basis of the complainant's statements to his mother to the effect that he did not want to talk about the offending and wanted to get on with his life (see [28] above), and his failure to reveal some of the offending to the investigating police officers, that the offending had 'a fairly significant impact' on him (ts 15). Her Honour also found that the appellant's voluntary disclosure of his offending in relation to count 6 was 'a two‑edged sword' (ts 16). Although she gave the appellant credit for this voluntary disclosure, it was tempered by her 'great concern that this little boy was so concerned about that, also concerned to protect you, that he wasn't prepared to tell anyone about it' (ts 16). In my opinion, these findings, as to the degree of impact of the offending on the complainant and as to the complainant's concern to protect the appellant, were not reasonably open. First, there was no victim impact statement before the court from the complainant or from another person on his behalf. See ss 24 ‑ 26 of the Sentencing Act 1995 (WA). Secondly, although the complainant's mother, in her witness statement, said that she contacted Princess Margaret Hospital on 6 February 2009 'to organise counselling for my boys', there was no evidence before the court as to whether counselling was in fact arranged for the complainant or his younger brother and, if so, as to the circumstances revealed in the course of the counselling or the nature and extent of any ongoing psychological or emotional trauma suffered by them. Thirdly, the complainant's failure or refusal to disclose all of the offending (notably, count 6) may have been a consequence of embarrassment and his desire, as conveyed to his mother, to 'forget about it and get on with my life'. A concern on the complainant's part to protect the appellant was not the only reasonable inference open in the circumstances. Such a concern was never suggested to the complainant in his interview with the police.
I am satisfied that, in the unusual circumstances of this case, the sentence of 2 years and 6 months' immediate imprisonment on count 6 was disproportionate to the seriousness of the offence after taking into account the matters referred to in s 6(2) of the Sentencing Act. The allegation of manifest excess in ground 1 has been made out. So too have the express errors to which I have referred.
The merits of ground 2
By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that ‑
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in Div 1 of pt 2 of the Sentencing Act, relevantly, that it is not appropriate to impose suspended imprisonment. See s 39(2) and (3) of the Act. That is, a court is not permitted to impose a term of imprisonment to be served immediately unless that is the only appropriate sentencing option. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14] (McLure JA), [58] (Buss JA).
Section 76(1) of the Sentencing Act provides:
A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.
By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
The factors to be considered when deciding whether or not to suspend a sentence of imprisonment were referred to by Steytler J in R v Liddington (1997) 18 WAR 394, 406. It is unnecessary to repeat them. See also The State of Western Australia v Johnson [2009] WASCA 224 [67] ‑ [72] (Buss JA, Owen & Wheeler JJA agreeing).
In my opinion, the sentencing judge was entitled to conclude that there was nothing in relation to count 6 which took it outside the ordinary disposition of a term of imprisonment to be served immediately. The objective circumstances of count 6, in the context of the whole of the appellant's offending against the complainant, were too serious to permit the imposition of a suspended sentence, notwithstanding the substantial mitigating factors in the appellant's favour. In particular, it was objectively serious that the offending occurred while the appellant was looking after the complainant; some of the offending was observed by the complainant's younger brother; there were multiple counts; the offending as a whole occurred over a period of about three months; there was some escalation in the seriousness of the offending; there was a significant age discrepancy between the appellant and the complainant; the offending occurred when the complainant was approaching puberty and his natural sexual orientation had not been established; and there was an extended family relationship between the complainant and the appellant. No error in her Honour's approach to this issue has been established. By s 76(3)(b) of the Sentencing Act, suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended. Accordingly, it was not open to her Honour to impose a suspended sentence in respect of any of counts 1 ‑ 5. Ground 2 fails.
The merits of ground 3
It is apparent from the material before the sentencing judge and this court that counts 2 and 3 were the 'water balloon incidents'. These incidents were witnessed by the complainant's younger brother. The younger brother disclosed to his mother's boyfriend what he had seen and the boyfriend repeated this disclosure to the mother.
It is also apparent from the material before the sentencing judge and this court that counts 1 and 4 related to the offending of which the complainant spoke in his formal interview with police.
In my opinion, there was no basis for reducing the sentences imposed on counts 2 and 3 by reason of the principle discussed in Schriever and Ellis. The appellant did not make voluntary disclosure of the offences the subject of these counts in circumstances in which they would not otherwise have come to light. As I have mentioned, the offending in question was seen and reported by the complainant's younger brother.
It is true that the appellant made voluntary disclosure in relation to count 5, as well as count 6, and that without this disclosure the offending in question was unlikely to have been revealed. However, counts 5 and 6 were committed contemporaneously, and the offence, the subject of count 6, was significantly more serious than the offence the subject of count 5. I am satisfied that, in these circumstances and as a result of the sentence on count 5 being made wholly concurrent with the sentence on count 6, it would not have been necessary to reduce the sentence on count 5 if there had been an appropriate reduction in the sentence on count 6 (as there should have been). As I have mentioned, ground 1, which alleges that the sentence on count 6 was manifestly excessive, has been made out. Ground 3 is without merit, and I would refuse leave to appeal in relation to it.
The result of the appeal
Ground 1 of the appeal succeeds. I would not impose a different sentence on counts 1, 2, 3, 4 or 5. See s 31(3) and s 31(4)(a) of the Criminal Appeals Act. A different sentence should, however, be imposed on count 6. This court is in a position to re‑sentence the appellant.
The individual sentences for counts 1 ‑ 5 should not be disturbed. The sentence of 2 years and 6 months' immediate imprisonment for count 6 should be set aside and replaced with a sentence of 18 months' immediate imprisonment. As I have mentioned, the objective circumstances of count 6, in the context of the whole of the appellant's offending against the complainant, are too serious to permit the imposition of a suspended sentence, notwithstanding the substantial mitigating factors in the appellant's favour. The sentences on counts 1 ‑ 5 should be served concurrently with each other and with the sentence on count 6. The total effective sentence is therefore 18 months' imprisonment. The appellant should remain eligible for parole and the sentences should commence on 20 October 2009, being the date on which the sentencing judge passed sentence and the appellant was taken into custody. He will be eligible to be considered for release on parole upon having served 9 months calculated from 20 October 2009.
JENKINS J: I have had the advantage of reading the draft reasons of Buss JA and McLure P. For the reasons given by Buss JA, I too would dismiss ground 2 and refuse leave to appeal on ground 3.
In respect of ground 1, I agree with the reasons of Buss JA, subject to the following qualification and additional comment. Consequently, I would allow the appeal on ground 1.
The extent to which the appellant's disclosure of count 6 indicated that he was remorseful and accepted responsibility for all his offending has to be measured against his non‑disclosure of count 4 prior to the complainant's disclosure of it, his failure to disclose count 6 during his first interview with the police and his false denials at the end of the first interview and during the second interview that any incidents other than counts 1, 2, 3 and 5 and that counts 1 ‑ 5 respectively, had occurred. In saying this I am not suggesting that the appellant was under any obligation to admit the offences to the police or that his immediate failure to do so aggravated the offences. I am simply of the view that in assessing how much credit he should be given for his voluntary disclosure of count 6, it is relevant to take into account all the circumstances, not all
of which support the view that the appellant was at all times, when spoken to by the police, prepared to take responsibility for his offending.
That said, the appellant's confessions to all offences indicated that the appellant was remorseful for his offending, wished to facilitate the course of justice and accepted responsibility for his offending. For his early confessions, especially his voluntary disclosures of counts 5 and 6, which were otherwise unlikely to have come to light, he deserved leniency, over and above the credit given to him for his fast‑track pleas of guilty.
Buss JA has identified express errors which were made by the sentencing judge. I viewed the recorded interview between the complainant and the investigators to ascertain whether the complainant said anything in it to justify the sentencing judge's comments about the effect of the offences on the complainant or the complainant's reasons for not disclosing all the offending behaviour. In the interview, he presented as an intelligent and co‑operative boy who was reticent to speak about the offences, which he said were instigated by the appellant. It is now clear from the appellant's disclosures that the complainant was not prepared to disclose all of the offences to the investigators.
There is inadequate material in the interview or in the evidence generally to justify the sentencing judge's comments. Common sense and experience of life tells me that it is possible the complainant took the approach he did because the offences had a significant impact on him and/or he was concerned to protect the appellant. However, there are other possible explanations for his failure to disclose the offences. For example, he may simply have been ashamed or embarrassed. Thus, it was speculative for the sentencing judge to come to conclusions about these matters. The inference which I draw from her Honour's comments is that she took those conclusions into account in an adverse manner when sentencing the appellant. It was an error for her to do so.
The result of the appeal
As a consequence of ground 1 having been made out, the appeal is to be allowed if the court is of the opinion that a different sentence should have been imposed: Criminal Appeals Act 2004 (WA), s 31(4). For the reasons given by Buss JA, I am of the view that the appropriate sentence for count 6 is 18 months' imprisonment, that all other sentences, which remain appropriate, should be ordered to be served concurrently with the sentence on count 6 and that the total effective sentence should be one of 18 months' imprisonment. This does not mean that a sentence of 18 months' imprisonment is at the very top of the range of appropriate sentences for offences of this type. However, it is the sentence which I believe should have been imposed on the appellant.
It is also necessary for me to consider whether it is appropriate to suspend that sentence. In doing so, I have considered whether all the relevant circumstances require the sentence to be served immediately. In my view the answer to this question is yes.
There is no doubt that the appellant has a number of personal factors in his favour. He is still a relatively young man and was a first offender. He was at the time of the offences emotionally vulnerable, due to having had a number of what have been described as 'nervous breakdowns'. He admitted his offending, including offences which were otherwise unlikely to have come to light, to the police and pleaded guilty on the fast track system. Between the revelation of the offending behaviour and sentencing he voluntarily completed the SafeCare Treatment Programme. The report from SafeCare, which was before the court, said that the appellant appeared to have made very good progress and that he was considered to be a low risk of reoffending. It was noted in the report and elsewhere that the appellant had become suicidal with shame after the revelation of the offending behaviour. At the end of the SafeCare Treatment Programme he was motivated to continue counselling.
I have also considered the objective seriousness of these offences. Sexual offences against children are, generally speaking, serious offences which usually attract terms of imprisonment to be served immediately.
There are several aggravating features which illustrate the seriousness of these particular offences. The first is that the offending continued over some months. The first offence was committed in around November 2008 and the last offence was committed in January 2009. The offending only stopped when it was observed by the complainant's younger brother, who then reported it. The fact that the offending was committed when a younger child was present or was able to walk in and observe the offending is itself an aggravating factor. I have also taken into account the escalating seriousness of the offences, culminating in the commission of count 6. In the context of the appellant's assertion that the offending occurred because of the complainant's curiosity about his physical development, it is also of concern that count 4 was apparently initiated by the appellant when he went in to the complainant's bedroom and sat on his bed. The complainant, who was also on his bed, was reading a book at the time. It is also relevant to note that the appellant took advantage of his familial relationship with the complainant's mother to commit these offences. Lastly, the considerable age difference between the appellant and the complainant is an aggravating factor.
Even giving full weight to all the mitigating factors and to the appellant's prospects of rehabilitation, suspended imprisonment is not an appropriate disposition of this matter. The objective seriousness of the series of offences, particularly counts 4 and 6, require the sentences to be served immediately, despite the mitigating personal considerations. I would therefore impose the terms of immediate imprisonment which I have earlier referred to.
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