LWJR v The State of Western Australia
[2009] WASCA 200
•12 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LWJR -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 200
CORAM: OWEN JA
McLURE JA
PULLIN JA
HEARD: 7 OCTOBER 2009
DELIVERED : 12 NOVEMBER 2009
FILE NO/S: CACR 25 of 2009
BETWEEN: LWJR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MACKNAY DCJ
File No :IND 329 of 2009
Catchwords:
Criminal law - Appeal against sentence - Seven counts of unlawful and indecent dealing with a child under 13 - Delay - Rehabilitation - Remorse - Fast-track plea of guilty - Turns on own facts
Legislation:
Criminal Code (WA), s 189(2)
Result:
Appeal allowed
Total sentence of 7 years' imprisonment set aside
Total sentence of 5 years' imprisonment imposed
Category: D
Representation:
Counsel:
Appellant: Mr H C Quail
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Evan Shackleton
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bell v The Queen [2001] WASCA 40
R v Leggett [2000] WASCA 327
JUDGMENT OF THE COURT: This is an appeal against sentence. On 12 March 2009 the appellant was convicted on his fast‑track plea of guilty of seven counts of unlawful and indecent dealing with a child under the age of 13 contrary to s 189(2) of the Criminal Code (WA).
The appellant was sentenced on 12 March 2009 to a total effective sentence of 7 years' imprisonment. The appellant contended the sentencing judge erred in imposing a total sentence of 7 years. There was no challenge to the individual sentences. At the conclusion of the hearing of the appeal, the court ordered that (1) the appeal be allowed; (2) the orders for cumulation made by the sentencing judge be set aside; (3) in lieu thereof, the sentence of 2 years' imprisonment on count 1 be cumulated with the sentence of 3 years' imprisonment on count 4, the balance of the sentences to be served concurrently, resulting in a total effective sentence of 5 years' imprisonment back-dated to commence on 11 March 2009. The appellant was made eligible for parole. These are our reasons for making those orders.
The offences were committed against two complainants, both of whom were the appellant's daughters. The offences were committed between 27 July 1979 and 1 January 1981. The facts of the offences are as follows. The appellant, who was naked, placed his 3-year‑old daughter (the first complainant), who was wearing only a T‑shirt, over his penis. There was no penetration (count 1). The rest of the offending was against his 5‑year‑old daughter (the second complainant). The appellant placed his penis into the mouth of the second complainant, making her perform oral sex (count 2). Whilst this was occurring, the appellant penetrated the second complainant's vagina with his fingers (count 3). Counts 4 ‑ 7 occurred on another occasion and involved three counts of fellatio (counts 4, 5 and 6) and one count of digital penetration (count 7).
The offences were committed at a time when the appellant was an alcoholic. There was a causal connection between his alcohol consumption and the offending. The appellant's wife became aware of his offending and left him. She told him she would only return to the family home with their three children if he stopped drinking. The appellant stopped drinking and his wife and children returned to the family home. The family (including the appellant) undertook individual and group counselling in relation to the offending. The appellant did not offend again. In 1985, at the request of the second complainant, the appellant wrote to her expressing remorse and apologising for his conduct.
On 16 June 2008, almost 30 years after the offences were committed, the appellant was interviewed by police concerning the sexual abuse of his children. The appellant readily made admissions. The offences were committed when the appellant was approximately 32 years old. He was aged 61 at the time of sentencing. He had committed no further offences of any nature in the intervening period. The state did not challenge the appellant's claim that he had been completely rehabilitated.
The maximum penalty for an offence under s 189(2) of the Code, which was repealed in 1989, is 7 years. Since the commencement of the Acts Amendment (Sexual Offences) Act 1992 (WA), the maximum sentence for the offence of fellatio with a child under 13 is 20 years' imprisonment (s 320(2) of the Code). The penalties imposed on the appellant must be determined by reference to the maximum applicable at the time of the offences, although within that framework, regard can be had to contemporary understanding of the seriousness of the behaviour: R v Leggett [2000] WASCA 327 [22]. Even so, care must be taken when comparing sentences imposed for such offences committed after 1992.
Notwithstanding the significant mitigatory factors present in this case, the nature of the offending with its long‑term deleterious effects on the victims, is too serious to countenance anything but a sentence of immediate imprisonment. However, the mitigating factors may feature more prominently in determining the appropriate individual and total terms of imprisonment.
In addition to the appellant's fast‑track plea of guilty, there are other manifestations of his remorse. They include the admission and apology in his 1985 letter to the second complainant and his cooperation with police. There is another mitigating factor in this case which is usually absent from cases of this nature. The clear weight of the evidence supported the appellant's unchallenged proposition that he was completely rehabilitated. Ordinarily, rehabilitation requires insight into the wrongful nature of the conduct, remorse for that conduct and action taken to address the cause of the offending. This is not a case in which the only relevant circumstance is the cessation of offending for a significant period. As Anderson J noted in Bell v The Queen [2001] WASCA 40 [15], that is not necessarily indicative of rehabilitation. There are other indicators of rehabilitation in this case. The offending stopped when the appellant gave up alcohol which was causatively linked with his offending. He attended counselling with his family to address the issues arising out of his offending and expressed his remorse and apologies in the 1985 letter to his daughter.
Notwithstanding the evidence and the appellant's unchallenged proposition that the appellant was completely rehabilitated, the sentencing judge did not sentence on that basis. He went no further than referring to the submissions made on the appellant's behalf whilst noting that he 'would not present a high risk of offending against other children'. That error enlivened this court's jurisdiction to intervene and re‑sentence. In all the circumstances, a total sentence of 5 years (7 years and 6 months pre‑transitional) is all that is required to meet the recognised sentencing objectives, including punishment, retribution and deterrence.
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