Lowenstein v The State of Western Australia
[2006] WASCA 212
•20 OCTOBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LOWENSTEIN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 212
CORAM: ROBERTS-SMITH JA
HEARD: 12 OCTOBER 2006
DELIVERED : 20 OCTOBER 2006
FILE NO/S: CACR 92 of 2006
BETWEEN: PETER ALEXANDER LOWENSTEIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'SULLIVAN DCJ
File No :IND 296 of 2005
Catchwords:
Criminal law and procedure - Bail pending appeal - Conviction of five sexual offences of girl between 13 and 16 years of age - Aggregate of 2 years' imprisonment with eligibility for parole - Girl aged 15 years 9 months - Girl instigated the sexual activity - Co-offender given suspended sentence - Ground that appellant's sentence should have been suspended - Likely prospect of success on appeal - Effect of imprisonment on rehabilitation of knee injury - Future employment prospects - Effect on family - Whether exceptional reasons why appellant should not be kept in custody pending appeal
Legislation:
Bail Act 1981 (WA), Sch 1, Pt C, cl 4
Result:
Application for bail dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S A Walker
Respondent: Mr A L Troy
Solicitors:
Appellant: Rattigan Kearney & Bochat
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bolton v The State of Western Australia [2006] WASCA 120
Featherston v The State of Western Australia [2006] WASCA 154
Lowndes v The Queen (1999) 195 CLR 665
Marris v The Queen [2003] WASCA 171
R v Leggett [2000] WASCA 327
The State of Western Australia v ABM [2004] WASCA 90
Tieleman v The Queen (2004) 149 A Crim R 303
Case(s) also cited:
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Dinsdale v The Queen (2000) 202 CLR 321
Goddard v The Queen (1999) 21 WAR 541
Indich v The Queen [1999] WASCA 146
Pearce v The Queen (2004) 149 A Crim R 303
R v Avery [2002] WASCA 136
R v GP (1997) 18 WAR 196
Ranford v The State of Western Australia [2006] WASCA 134
Rowley v The State of Western Australia [2006] WASCA 122
ROBERTS-SMITH JA: The appellant is presently serving a sentence of 6 months' imprisonment for various sexual offences on a child between the ages of 13 and 16 years. He has appealed against sentence and now applies for bail pending appeal.
On 26 May 2006, following trial before O'Sullivan DCJ and jury in Perth, the appellant was convicted of five offences of indecent dealing and one of sexual penetration. All the offences were committed on the same occasion and upon the same complainant "A", who on the evidence, was aged approximately 15 years and 9 months at the time. The appellant was acquitted on a number of other accounts on the indictment.
On 14 June 2006 he was sentenced to 2 years' imprisonment in the aggregate, to be immediately served. An order was made that he be eligible for parole. A sentence of 16 months was imposed upon his co‑offender ("Grundy"), but his Honour ordered that sentence be suspended for a period of 2 years. The appellant had been sentenced to 16 months' imprisonment in respect of the same offences as those of which Grundy was convicted, but she was not charged with the sexual penetration; it was in respect of that a sentence of 2 years' imprisonment was imposed.
The appeal notice was filed on 5 July 2006 and the Appellant's Case was lodged on 29 September 2006. The grounds of appeal are:
"1.In declining to order that the service of the sentences of imprisonment be wholly suspended, his Honour erred in principle, having regard particularly to the following facts:
(a)the very good antecedents of the Appellant;
(b)his early and firm expressions of remorse;
(c)that he was not a leader in the offending behaviour, but rather was a follower, at least in its initiation;
(d)the spontaneous and brief nature of the offences;
(e)the absence of grooming behaviour, and the absence, or alternatively the minimal presence, of the element of abuse.
2.His Honour further erred when he acted upon a wrong principle by failing to assess, by reference to the objective facts, the existence (and if existed, the extent) of the elements of 'abuse' present in the offences and in the circumstances of their commission.
3.His Honour further erred by acting upon a wrong principle by confining the availability of a suspended sentence of imprisonment to cases which are unusual in their factual settings.
4.His Honour further erred in principle by failing to order that the service of the sentences of imprisonment be wholly suspended, when such an order was made in respect of the co‑offender, and the circumstances of the commission of the offences and their personal circumstances did not justify such a disparity in sentence.
5.In the overall circumstances of the commission of the offences for which the Appellant and his co‑offender were sentenced, each should have received an overall sentence of the same length, and for that reason the sentence of 2 years for the offence of sexual penetration was manifestly excessive."
On 5 October 2006 I granted leave to appeal on all five grounds.
The appellant's bail application was filed on 29 September 2006, together with an affidavit of the appellant in support, sworn 24 August 2006.
There is no contest about the principles which are to be applied on an application for bail pending appeal. Schedule 1, Pt C, cl 4 of the Bail Act 1982 (WA) requires that in deciding whether or not to grant bail to an appellant who is in custody awaiting the disposal of appeal proceedings, the court must first consider whether there are exceptional reasons why the appellant should not be kept in custody and shall only grant bail if satisfied there are such exceptional reasons and that bail may properly be granted having regard to the provisions of cl 1 and cl 3 of Sch 1. Those last two clauses set out the ordinary principles applicable to a grant of bail.
For the purpose of these reasons, I shall refer to the statutory requirement for exceptional reasons why the appellant should not be kept in custody pending his appeal as simply "exceptional reasons".
The meaning of the term "exceptional reasons" has been discussed in a number of authorities. The appellant is required to demonstrate reasons which are unusual or out of the ordinary or in some way special or an exception to the general run of cases (see Tieleman v The Queen (2004) 149 A Crim R 303 at [14] ‑ [15], [24], [42], [46], [48] and [51]).
The fact that leave to appeal has been granted is not indicative of anything more than that the appeal has a reasonable prospect of succeeding. A significantly higher prospect of success must be shown before that could constitute an exceptional reason, either alone or in combination with any other factor. That must be so because otherwise every appellant who is granted leave to appeal would have an entitlement to bail, which is clearly not what the statute contemplates (Featherston v The State of Western Australia [2006] WASCA 154).
The appellant's affidavit does not expressly characterise any reason advanced in it as constituting an exceptional reason. However, the position is clarified by the outline of submissions provided by counsel for the appellant on 11 October 2006. To understand those submissions and what are there said to constitute exceptional reasons, it is expedient first to refer to the matters deposed to by the appellant in his affidavit.
The appellant had been on bail prior to the date of his sentencing. He has never had bail refused previously. Whilst facing the charges he remained in Western Australia. He was employed by Barminco and attended every court appearance and complied with all his bail conditions.
He is currently in a relationship with one "RS". Her parents own their own business in Midland. They are prepared to stand bail for him up to the sum of $10,000.
The appellant was born on 27 November 1973 and is 32 years of age.
He deposes that if granted bail, he will reside with his partner in a unit in Armadale owned by her parents. No one else lives at that address. He is prepared to report to police as required. Although he was originally from New South Wales, the appellant has lived in Western Australia since 1991 and the only time he returned to New South Wales was to visit family and friends.
He has recently completed Family Court proceedings in relation to a property settlement with his ex‑wife and involving residency and contact issues with his daughter "L", who was born on 22 January 2002. Orders were made in the Family Court by consent prior to the trial which allowed him liberal contact with L. Before being incarcerated, he was permitted to contact his daughter whenever he was in Perth, subject to various arrangements which may have been made or required by his former wife from time to time. He deposes that he was building a good relationship with L and intended to extend that contact and remain a significant part of her life as she grew older. She does have some health issues arising from having been born prematurely at 24 weeks. He deposes that doctors have advised that she will have developmental problems as she grows older and he wishes to be around and be able to give her every opportunity to grow and develop as a normal child.
He annexes to his affidavit a letter from his employer dated 19 July 2006, certifying his employment and the conditions in which he could continue to be employed.
The letter states that he was employed by Barminco as a driller's offsider on 6 April 2006 and that until 14 June this year he was on light duties in the Applecross office following a work injury to his right knee. He was under the care of a specialist and prior to his imprisonment the company was expecting him to return to its Kalgoorlie yard for work hardening, before returning to his unrestricted pre‑accident duties.
Prior to his injury in February this year, the appellant was in receipt of $300 per shift on a two week on, one week off roster. The company has, in accordance with the legal requirement, been holding his position open for him. That requirement is for a period of 12 months which will accordingly end on 6 February 2007. The company advises that if he is unable to return to work before that date it will unfortunately have to terminate his employment.
According to the appellant, other than for a period of approximately six months around the time he came to Western Australia, he has always had employment and worked in various occupations since leaving school at the end of Year 12, aged 17. He started a certificate course in horticulture but did not complete that. He obtained training in sales and management. He has held down jobs for extended periods. The longest was five and a half years. He has done gardening, horticulture work, fibreglass laminating, cleaning and since 2000 has been involved in the mining industry.
He deposes that whilst employed with Barminco he was paying child support of $664 a month for L, but since being sentenced that has been reduced to $25 a month. As a result, his ex‑wife is now totally reliant on social security benefits and has also suffered a drop in income to cover her and L's living expenses.
He deposes that on approximately 6 February 2006 he developed a right knee problem arising from repetitive use. He was treated by his general practitioner, Dr Michael Beinart. There is a copy of a report from Dr Beinart, dated 31 July 2006, annexed to his affidavit. I shall return to that in a moment. The appellant states that other than the knee problem, he enjoys good health. Under rehabilitation with his employer he was expecting to return to full and unrestricted duties in the near future. He then says that before being sentenced he received physiotherapy every day as part of his rehabilitation programme. That was designed to remove the fluid from his knee and strengthen the knee. However, he says that since incarceration he has received only two sessions of physiotherapy and his knee problem seems to be getting worse. He has difficulty standing and climbing stairs. At the prison he was originally assigned to laundry duties which required constant standing during a shift, without breaks. As at the date of his affidavit he had been transferred to cleaning up the visitors' centre. He described that as "a little lighter" in the sense that it is less consistent work. He can stop and take breaks and vary his jobs to relieve his right knee symptoms. However, he says he still has difficulty doing any repetitive tasks such as sweeping and mopping because of the problem with his right knee.
Dr Beinart's report from Gemini Medical Services, West Perth, states that the appellant presented initially with an acutely inflamed swollen painful right knee which did not settle and for which he was referred to an orthopaedic surgeon, Mr Clem McCormick.
After arthrogram and intra‑articular injection, the knee condition failed to settle and he underwent an arthroscopic assessment of his knee in early May 2006 by Mr McCormick. Dr Beinart states that in his report Mr McCormick indicated that at surgery the appellant was found to have a 2 cm by 2 cm area of unstable cartilage affecting the lateral facet of the patella. This was treated by chondroplasty and he was referred on for physiotherapy.
Dr Beinart last reviewed the appellant on 9 June 2006, at which time he was still unable to fully weight bear on the right leg. He was limping severely, reporting significant pain and stiffness in that knee.
On examination, the appellant was unable to weight bear and was unable to fully extend or flex the right knee. It remained puffy, swollen and generally inflamed. Treatment was to continue with physiotherapy under Mr Gary Brockman and the appellant was to attend to Mr McCormick on 22 June 2006.
Of course, he was sentenced on 14 June 2006.
Dr Beinart has not seen the appellant since 9 June this year.
In response to a question which he had apparently been asked about the consequences of the appellant not receiving appropriate treatment or any exercise programme, Dr Beinart expressed the opinion that he requires on‑going treatment with his physiotherapist and review by Mr McCormick, together with a supervised functional exercise rehabilitation programme for his injured right knee.
Mr Walker, counsel for the appellant, submits that the following are exceptional reasons:
(a)It is most likely that he will succeed on one or more of his grounds of appeal, and those grounds demonstrate that high degree of likelihood of success as to constitute exceptional reasons;
(b)The likely effect on his rehabilitation from an injury to his right knee, should he not be granted bail;
(c)The likely effect on his future work prospects, and particularly on his chances of returning to work with his current employer, should he not be granted bail; and
(d)The likely impacts on his infant daughter should he not be granted bail.
The first of those seems to me to be the most important. That is because, unless there is such a high prospect of success as to give rise to a real apprehension that the Court of Appeal will substitute a non‑custodial sentence, so that the appellant's continued incarceration in the meantime would retrospectively be seen to have been unjust, the other considerations advanced would be no more than the consequences which flow from his commission of the offences. Nonetheless, they do bear on the aspect of exceptional reasons and I do take them into account.
Mr Walker quite frankly acknowledged that of factors (b), (c) and (d), that which would weigh the most heavily as going to exceptional reasons was the appellant's situation with respect to his right knee. He put that matter in the most favourable possible way to his client on the material available to him, but, to my mind, it is not a particularly strong factor. There is no current medical evidence of any kind and the description of the injury and its consequences by Dr Beinart (at least until 9 June 2006) and the appellant do not enable me to infer to any sufficient degree of satisfaction that the injury and its prognosis are sufficiently serious, or that appropriate treatment or rehabilitation facilities are relevantly unavailable, to constitute an exceptional reason, either alone or in combination with the other factors relied upon.
So far as the question of time is concerned, I am informed the Court of Appeal November list is already full. Mr Walker is not available in December. Accordingly, the appeal is most likely to be listed for hearing in January 2007.
As the appellant's aggregate sentence was 2 years' imprisonment, he will become eligible for parole after serving 12 months. By January next year he will have served 7 months. That is clearly a significant factor in his favour on this application. Again, however, the force of it turns considerably upon the extent to which there is a likelihood the appeal will succeed such that the Court will substitute a non‑custodial sentence.
Accordingly, I turn briefly to the circumstances of the offences, bearing in mind I am not here making any final determination of the grounds of appeal, but only assessing their likely prospect of success before the Court of Appeal.
The first offence was one of indecent dealing by engaging in fellatio with Grundy in the presence of the complainant (s 321(4) of the Criminal Code (WA) ("the Code")). The second was indecent dealing by encouraging the complainant to suck Grundy's breasts (s 321(4) of the Code). The third was indecent dealing by encouraging the complainant to engage in sexual behaviour, namely to penetrate Grundy's vagina with her finger (s 321(4) of the Code). The fourth was indecent dealing by encouraging the complainant to engage in cunnilingus with Grundy. The fifth was indecent dealing by having sexual intercourse with Grundy in the presence of the complainant. The sixth was sexual penetration by penetrating the complainant's vagina with his penis (s 321(2) of the Code).
Grundy was convicted of five offences, but they were all indecent dealings.
I do not recount the facts in detail. The offences commence with Grundy's tacit encouragement of the complainant to intimately dry her after she had emerged from the shower. His Honour accepted that was initiated by the complainant. Thereafter, the appellant and Grundy committed a number of different offences, although again it was accepted that the complainant instigated the sexual conduct that did occur.
The appellant and Grundy removed their clothes and, together with the complainant, went on to a bed. Grundy performed oral sex on the appellant whilst the complainant sucked Grundy's breasts. At the same time, the complainant inserted her finger into Grundy's vagina while the appellant kissed Grundy. Grundy then lay on her back whilst the complainant licked her vagina for a short time. The appellant then placed a condom on his penis and had sexual intercourse with Grundy whilst the complainant watched. After a short while the appellant then had sexual intercourse with the complainant, penetrating her vagina with his penis. That was the offence with which he alone was charged.
Self‑evidently the appellant's conduct was very serious. Mr Walker did not suggest otherwise.
In sentencing, his Honour specifically had regard to two authorities to which his attention had been drawn by the State. These were The State of Western Australia v ABM [2004] WASCA 90 and Marris v The Queen [2003] WASCA 171.
In ABM, the respondent pleaded guilty to one count of sexual penetration of a child between the ages of 13 and 16 years. He was then convicted, after trial, of two further counts of sexual penetration of a child between those years. He was sentenced in relation to the offence to which he had pleaded guilty, to 18 months' imprisonment, suspended for 18 months. In respect of the further two offences, he was sentenced to an 18‑month intensive supervision order with programme and supervision requirements. The State appealed against those sentences. With some hesitation, the Court of Criminal Appeal (Miller J dissenting) declined to interfere with the sentences imposed.
In that case, the complainant had been a consenting participant in the sexual activities and indeed had invited the respondent into her bed. As the sentencing Judge noted, however, that did not excuse his conduct, although it was a relevant factor in assessing the degree of his culpability. Wheeler J (as her Honour then was) observed at [21]:
"I accept that ordinarily the offences committed by the respondent, and in particular the third count, notwithstanding the plea of guilty to it, called for terms of imprisonment to be served immediately. I accept also that, although there were substantial mitigating factors, there was nothing so unusual about them as to suggest to this Court that it would be appropriate to suspend any term which was imposed."
In Marris, a sentence of 3 years' imprisonment had been imposed upon an offender who had committed two offences of indecent dealing with a child between the ages of 13 and 16 years and 4 counts of sexual penetration of a child between those years. The offences had occurred within a short space of time on the one occasion and in circumstances where the offender had met the complainant at a country show earlier in the day and met up with her later in the evening. The Court allowed the appeal and ordered suspension of the sentences from the date of hearing of the appeal. The offender had been in custody from the date of sentence, 26 November 2002, to 14 April 2003.
In that case, the sentencing Judge accepted that the offences were consensual. The complainant was 13 years of age at the time and had told the appellant that. Although the complainant was younger than in the present case, the acts of sexual penetration were arguably less serious in that they could be described simply as involving foreplay and sexual intercourse involving changes of position.
Wheeler J (who also sat on that appeal) observed (at [15]):
"In the present case … there was not that element of 'grooming' behaviour which was present in Avery [[2002] WASCA 136]. Rather, there was what appears to have been a purely opportunistic offending over a very short space of time, and lacking, so far as one can discern, any element of real premeditation. The sexual encounter which occurred is undoubtedly one which the complainant regrets, and it is one which the appellant accepts should not have occurred. However, the element of 'abuse' which was present in Avery, appears to me to be wholly absent in this case."
Mr Walker submits that for similar reasons the level of the appellant's culpability in the present case must fall at the bottom end of seriousness of offences of the kind.
Whilst the appellant's offending was opportunistic in the sense that it was not something which had been premeditated or planned by him and was in response to the complainant's own instigation, nonetheless the appellant had known the complainant for two years and had a full appreciation of her background. As Mr Troy put it in his oral submissions, there are two paragraphs in the sentencing Judge's reasons for sentence which succinctly express his approach. At t/s 483 his Honour said:
"It is true that the child seems to have been a willing participant and even an instigator of the sexual activity but she was only 15 years of age and clearly very immature. She was beset by problems of self‑esteem and social maladjustment. She had some learning difficulties which were referred to in the evidence and she had clearly enough the sexual curiosity which you have an obligation not to exploit.
You are each older than her by some significant number of years; you, Lowenstein, by 12 years… . Moreover, while you were no longer members of the church group of which the child was also a member, you had been members of the same group and you had been in the position of adult supervisors or parent leaders. No doubt she had come to regard you as persons in authority and persons who were to be looked up to and who might influence her in her conduct."
In Marris, the age disparity was approximately seven years and the appellant was himself relatively immature. In the present case, as the sentencing Judge pointed out, the age disparity between the appellant and the complainant was 12 years and he could not be said to have been relatively immature.
The respondent submits that the appellant was in a situation of trust or authority with respect to the complainant (albeit not a position of trust).
In relation to the disparity ground, there seems to me a strong argument that the disparity between the sentences imposed upon the appellant and Grundy is explicable both by reason of the different circumstances of the offences and their own circumstances.
In respect of the offences, it was the appellant who had the greatest contact with the complainant over the two years that he and Grundy had known her prior to the offences. He knew she had expressed a sexual interest in him. He knew she had run away from home and he had visited her in a psychiatric unit following that. The complainant was a frequent visitor to the home of the appellant and Grundy, despite the fact that Grundy had expressed concerns to the appellant about that. It was the appellant who committed the most serious offence by penetrating her vagina with his penis. Offences involving penetration of a young child are of the utmost seriousness and less weight should be given to mitigating factors where there is an abuse of trust. Penile penetration is regarded as being a very bad example of sexual abuse (R v Leggett [2000] WASCA 327 per Wheeler J at [21]).
So far as their personal circumstances were concerned, at the time of sentence Grundy was the full‑time carer of their 4‑year‑old child, who had on‑going developmental issues for which she receives treatment. Grundy was raising the child in her capacity as a sole parent. The sentencing Judge took into account the fragility of Grundy's psychological health, as he was entitled to do. The Court of Appeal might well take the view that these matters constituted mitigatory features personal to Grundy which justified suspending her sentence, but which did not operate in that way in favour of the appellant (Bolton v The State of Western Australia [2006] WASCA 120). Indeed, in fairness to him, Mr Walker made it clear he was not arguing that the appellant's circumstances were relevantly the same as Grundy's, although he maintained the position that "parity and disparity comes into it to a limited extent". His argument rather was, that it would have been inappropriate and wrong to impose an immediate custodial sentence on either of them.
Be that as it may, the appeal is against the sentence imposed on the appellant.
There was much that went in the appellant's favour by way of mitigation. The pleas of guilty, the appellant's immediate regret and genuine remorse, his co‑operation with the police, his employment, his lack of prior offending and the spontaneous nature of the offences committed at the complainant's instigation are all amongst the most significant of such factors.
Nonetheless, the question is not whether I or the members of the Court of Appeal would have imposed a different sentence - that is to say - whether we would have ordered the sentences to be suspended (Lowndes v The Queen (1999) 195 CLR 665). It is whether a sentence of immediate imprisonment was so outside the range of a proper exercise of the sentencing discretion, as to show it must have miscarried. I am not persuaded there is such a strong prospect of the Court of Appeal taking the view that it was, as to constitute an exceptional reason, either alone or in combination with the other factors relied upon, why the appellant should not be kept in custody pending the hearing of his appeal.
Given that conclusion, although the fact that the appellant would have served more than half of the non‑custodial portion of his sentence by January 2007 is an important consideration, its importance is diminished.
As I am not persuaded the appellant has demonstrated exceptional reasons such as to enliven the discretion to grant bail pending appeal, the application must be dismissed.
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