LYN v The State of Western Australia

[2019] WASCA 45

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LYN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 45

CORAM:   MAZZA JA

MITCHELL JA

BEECH JA

HEARD:   3 DECEMBER 2018

DELIVERED          :   12 MARCH 2019

FILE NO/S:   CACR 206 of 2017

BETWEEN:   LYN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number             :   ALB IND 65 of 2016

Catchwords:

Criminal Law - Sentencing - Appellant convicted of sexual offending against three daughters - Where offending against all victims occurred prior to 2005 - Where, in 2005, the  appellant was sentenced to a total effective sentence of 4 years' immediate imprisonment for offending against eldest daughter - Where, in 2017, the appellant was sentenced to total effective sentence of 10 years 3 months' imprisonment for offending against his other two daughters -  Whether total effective sentence imposed in 2017, considered in the context of the total effective sentence imposed in 2005, infringes the first limb of the totality principle

Legislation:

Criminal Code (WA), s 329

Result:

Appeal allowed
Appellant resentenced

Category:    D

Representation:

Counsel:

Appellant	:	Mr P N Bevilacqua
Respondent	:	Mr J C Whalley

Solicitors:

Appellant	:	Mr P N Bevilacqua
Respondent	:	Director of Public Prosecutions (WA)

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

CAND v The State of Western Australia [2018] WASCA 101

ERA v The State of Western Australia [2013] WASCA 163

FWB v The State of Western Australia [2016] WASCA 118

GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178

GMS v The State of Western Australia [2009] WASCA 107

JJR v The State of Western Australia [2018] WASCA 51

KMB v The State of Western Australia [2010] WASCA 212

Labrook v The State of Western Australia [2016] WASCA 127

LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355

LWD v The State of Western Australia [2012] WASCA 76

NN v The State of Western Australia [2018] WASCA 92

Roffey v The State of Western Australia [2007] WASCA 246

The State of Western Australia v FJG [2012] WASCA 206

VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1

YDN v The State of Western Australia [2018] WASCA 62

JUDGMENT OF THE COURT:

Summary

1. Prior to 2005, the appellant engaged in serious sexual offending against his three daughters.  In 2005, he was sentenced after trial to a total effective sentence of 4 years' immediate imprisonment in respect of the offending against his eldest daughter.  In 2017, the appellant was sentenced, on his pleas of guilty, to a total effective sentence of 10 years 3 months' imprisonment in respect of the offending against his other two daughters.  The total effective sentence in respect of the offending against all three daughters was therefore 14 years 3 months' imprisonment.

2. The appellant now appeals against the sentences imposed in 2017.  He contends that the total effective sentence imposed in 2017, considered in the context of the sentence imposed in 2005, infringes the first limb of the totality principle.  The appeal should be allowed on that basis. 

3. In resentencing the appellant, we consider a total effective sentence of 12 years' imprisonment to be commensurate with the total criminality of the offences against all three victims.  Taking account of the sentence of 4 years' imprisonment imposed in 2005, the total sentence of 10 years 3 months' imprisonment imposed in 2017 should therefore be reduced to 8 years' imprisonment.

Sentences imposed

1. On 11 September 2017, the appellant was sentenced to a total effective sentence of 10 years 3 months' imprisonment in respect of various sexual offences committed against his daughters, GL and AJ.  The offences against GL were committed on unknown dates between 19 January 1997 and 30 August 2004, when GL was aged between 4 and 11 years.  The offences against AJ were committed on unknown dates between 9 August 1998 and 10 August 2003, when AJ was aged between 4 and 9 years.

2. The individual sentences the sentencing judge imposed in 2017 on indictment ALB 65 of 2016 (2016 indictment) were as follows:

Sentences on the 2016 Indictment
Count	Offence	Offence Dates	Max penalty	Sentence	Cumulative/Concurrent
1	Sexual penetration of GL, a child under the age of 16 years who he knew to be a lineal relative, by penetrating her vagina with his finger (Code s 329(2))	Unknown b/n 19/1/97 - 20/1/98	20 years	2 years 9 months	Concurrent
4	Sexual penetration of AJ, a child under the age of 16 years who he knew to be a lineal relative, by penetrating her vagina with his finger (Code s 329(2))	Unknown b/n 9/8/98 - 10/8/00	20 years	2 years 9 months	Head sentence
6	Sexual penetration of AJ, a child under the age of 16 years who he knew to be a lineal relative, by penetrating her vagina with his finger (Code s 329(2))	Unknown b/n 9/8/98 -10/8/03	20 years	2 years 9 months	Concurrent
8	Sexual penetration of GL, a child under the age of 16 years who he knew to be a lineal relative, by introducing his penis into her mouth (Code s 329(2))	Unknown b/n 19/1/00 - 20/1/02	20 years	3 years	Cumulative
9	Sexual penetration of GL, a child under the age of 16 years who he knew to be a lineal relative, by penetrating her vagina with his finger (Code s 329(2))	Same date as count 8	20 years	2 years 9 months	Concurrent
10	Sexual penetration of GL, a child under the age of 16 years who he knew to be a lineal relative, by penetrating her vagina with his penis (Code s 329(2))	Same date as count 8	20 years	4 years 6 months	Cumulative
11	Indecent dealing with GL, a child under the age of 16 years who he knew to be a lineal relative, by rubbing her vaginal area with his hand (Code s 329(4))	Unknown b/n 19/1/00 ‑ 20/1/02	10 years	2 years	Concurrent
14	Sexual penetration of GL, a child under the age of 16 years who he knew to be a lineal relative, by penetrating her vagina with his penis (Code s 329(2))	Unknown b/n 19/1/02 and 20/1/03	20 years	4 years 6 months	Concurrent
16	Indecent dealing with GL, a child under the age of 16 years who he knew to be a lineal relative, by rubbing his penis against her vagina (Code s 329(4))	Unknown b/n 19/1/04 - 30/8/04	10 years	2 years 3 months	Concurrent
Total Effective Sentence	10 years 3 months

1. The State accepted the appellant's plea of guilty to the above offences in satisfaction of the 16 count indictment.

2. The sexual offending against GL and AJ came to an end when the appellant's sexual offending against their older half-sister, the appellant's eldest daughter AP, was discovered.  On 24 November 2005, the appellant was sentenced on indictment ALB 20 of 2005 (2005 indictment) to a total effective sentence of 4 years' immediate imprisonment in respect of the following sexual offending against AP:

Sentences on the 2005 Indictment
Count	Offence	Offence Dates	Max penalty	Sentence	Cumulative/Concurrent
1	Indecent dealing with AP, a child under the age of 16 years who he knew to be a lineal relative, by rubbing her chest (Code s 329(4))	Unknown b/n 8/1/96 - 10/1/97	10 years	3 months	Concurrent
2	Indecent dealing with AP, a child under the age of 16 years who he knew to be a lineal relative, by rubbing her vaginal area (Code s 329(4))	Same date as count 1	10 years	9 months	Cumulative
5	Indecent dealing with AP, a child under the age of 16 years who he knew to be a lineal relative, by touching her breasts (Code s 329(4))	Unknown b/n 1/1/02 - -31/12/02	10 years	3 months	Cumulative
8	Sexual penetration of AP, a child under the age of 16 years who he knew to be a lineal relative, by engaging in cunnilingus (Code s 329(2))	Unknown b/n 9/4/04 - 31/12/04	20 years	3 years	Head sentence
9	Indecent dealing with AP, a child under the age of 16 years who he knew to be a lineal relative, by compelling her to masturbate him (Code s 329(4))	Same date as count 8	10 years	12 months	Concurrent
Total Effective Sentence	4 years

1. The appellant was convicted of the above offences against AP after trial.  At trial, he was acquitted of 4 additional counts of sexual penetration of AP.

The appeal to this court

1. The appellant now appeals against the sentences imposed in 2017 on three grounds.  The grounds were drafted at a time when the appellant did not have the benefit of legal representation.  In oral submissions, counsel explained that grounds 1 and 2 assert, in effect, that the 2017 sentences infringe the totality principle.  On 6 June 2018, Mazza JA and Beech JA granted leave to appeal on ground 1, and referred the application for leave to appeal on grounds 2 and 3 to the hearing of the appeal.  Ground 3 was abandoned at the hearing of the appeal.[1]

   [1] Appeal ts 20.

The totality principle

1. McLure JA, with whom Steytler P and Miller JA agreed, summarised the totality principle in Roffey v The State of Western Australia:[2]

   The legal principles relevant to the disposition of this appeal are not in dispute.  An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge.  It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

   The appellant relies on the totality principle which comprises two limbs.  The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. 

   The second limb is that the court should not impose a 'crushing' sentence.  The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release.  An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.

   The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences.  A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served.  Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.

   (citations omitted)

   [2] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

2. In the present case, only the first limb of the totality principle is of significance for the determination of this appeal.  The appellant was only 53 years old at the date of sentencing, and will be 63 years old on release if he serves the whole of the sentence imposed in 2017.  It cannot be said that the sentence destroys any reasonable expectation of a useful life after release, so as to be crushing in the sense described in Roffey.

3. The common position of both parties is that, in applying the first limb of the totality principle in the present case, primary regard is to be had to sentences imposed both in 2005 and 2017 and the appellant's offending against his three daughters.  That is, the parties accepted that the critical question is whether a total effective sentence of 14 years 3 months' imprisonment bears a proper relationship to the overall criminality involved in all those offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.[3] 

   [3] Appeal ts 20, 25.

4. It is established that a completed sentence may be taken into account in applying the totality principle in certain circumstances.[4]  We accept the parties' common position as to the application of the totality principle in the circumstances of this case, which involved a course of offending by the appellant against his three daughters at a time before the commencement of his first sentence of imprisonment.

   [4] See Labrook v The State of Western Australia [2016] WASCA 127 [34] - [40].

Circumstances of offending

Offending against AP

1. The trial judge sentencing the appellant in 2005 made the following findings as to the circumstances of his offending against AP.

2. The appellant's offending against AP spanned a period of about 8 years, from when she was about 6 years old to when she was about 14.  The offences of which the appellant was convicted were not isolated.

3. The appellant and AP's mother were never married.  The appellant separated from AP's mother when she was pregnant with AP.  He married another woman and did not know AP for about the first three years of her life.  Contact was subsequently arranged, and AP grew to love and trust the appellant.[5]

   [5] Transcript 24/11/05 111 - 112.

4. The appellant's behaviour started off as 'gentle outside-the-clothing, touching'.  Emboldened by AP's compliance with his instruction not to tell anyone, the appellant's offending escalated in its seriousness, culminating in sexual penetration by cunnilingus.  The indecent dealing included rubbing the 6‑year‑old AP on her chest and vagina outside her underpants, touching her breasts when she was about 12, sexually penetrating her by engaging in cunnilingus when she was about 14 and then making her masturbate the appellant until ejaculation.[6]

   [6] Transcript 24/11/05 111.

5. The trial judge found that the appellant's repeated offending against AP over 8 years was a gross breach of trust.  The appellant was not remorseful.  At the time of his sentencing in 2005, the appellant was 41 years old and married but estranged from his family.[7]

Offending against GL

[7] Transcript 24/11/05 112.

1. The following circumstances of the appellant's offending against GL are taken from the facts read by the prosecutor, accepted by the appellant[8] and incorporated into the sentencing judge's sentencing remarks.[9]

   [8] Primary ts 28.

   [9] Primary ts 40.

2. In relation to count 1, the appellant was home alone with the 4‑year‑old GL and her younger sister, AJ.  The appellant carried GL to a breakfast bar and sat her on his lap to eat cereal.  He put his hand inside her pyjama bottoms and digitally penetrated her vagina, while pressing his erect penis against her buttocks.[10]

   [10] Primary ts 25.

3. Counts 8, 9 and 10 all occurred on the same unknown date between 19 January 2000 and 20 January 2002, when GL was about 7 - 9 years old.  The appellant took GL and AJ for a drive to a rocky area.  GL spilt her drink on her lap while travelling in the front passenger of the appellant's vehicle.  The appellant told her to remove her knickers to dry them.  The appellant stroked her leg with his left hand, which he moved up under her denim skirt towards her upper thigh.  The appellant stopped the vehicle.  With the promise of ice-cream, he coaxed GL to go to the rear of the vehicle and lie under a tarpaulin.  He forced GL's head towards his groin and put his penis in her mouth.  He then digitally penetrated her vagina.  The appellant lay on top of GL and partially penetrated her vagina with his penis before ejaculating over her groin area.  The appellant then drove GL and AJ home.[11]

   [11] Primary ts 26.

4. Count 11 occurred on another unknown date between 19 January 2000 and 20 January 2002, when GL was about 7 - 8 years old.  The appellant came home from work at lunchtime and followed GL into the outside shed as she looked for a toy.  He put his hand in her shorts and pulled her knickers up into her vagina.  The appellant used his fingers to rub the outside of GL's vagina over the material of her knickers.  The conduct was interrupted by GL's mother shouting that lunch was ready.[12]

   [12] Primary ts 27.

5. Count 14 occurred on an unknown date between 19 January 2002 and 20 January 2003, when GL was about 9 years old.[13]  The appellant entered GL's bedroom one night, put his hand under the bedding and started to rub her.  He had a plastic bag over his erect penis.  He manipulated GL's body position and continued to rub the outside of her vagina with his penis, which was still inside the bag.  He then penetrated GL's vagina and had sex with her until he ejaculated.  The appellant then helped GL adjust her pyjamas, kissed her on the forehead, and left the room.[14]

   [13] Primary ts 19.

   [14] Primary ts 27.

6. Count 16 occurred on an unknown date between 19 January 2004 and 30 August 2004, when GL was about 11 years old.  The appellant took GL for a ride on his motorcycle along some bush tracks.  He allowed GL to sit in front of him while teaching her how to use the bike's controls.  The appellant put his hand up the skirt of GL, who was not wearing underwear, and rubbed the outside of her vagina.  He then took his penis out of his trousers and manipulated GL so that the outside of her vagina rubbed up and down on the top of his penis.  After a time, the appellant stopped and rode back to their house, telling GL not to tell anybody.[15]

Offending against AJ

[15] Primary ts 27.

1. The following circumstances of the appellant's offending against AJ are taken from the facts read by the prosecutor, accepted by the appellant and incorporated into the sentencing judge's sentencing remarks.

2. Count 4 occurred on an unknown date between 9 August 1998 and 10 August 2000, when AJ was about 4 years old.  The appellant took AJ for a ride towards a rocky area, and coaxed AJ to the rear of his wagon with the inducement of a treat.  He pulled a blanket over them both, pulled down AJ's knickers and digitally penetrated her vagina while trying to put her hand on his penis.[16]

   [16] Primary ts 25.

3. Count 6 occurred on an unknown date between 9 August 1998 and 10 August 2003, when AJ was about 4 - 8 years old.  The appellant's wife was out and AJ was having a bubble bath.  The appellant directed AJ to pull out the bath plug and stand up to be dried.  He used his finger to tickle up and down AJ's leg, then started touching her vagina before digitally penetrating her.[17]

   [17] Primary ts 26.

Victim impact

1. The sentencing judge had victim impact statements from GL and AJ before him.  Both statements describe the terrible impact the appellant's offending had on their lives.  Family relationships have been disrupted.  Both experienced difficulty at school and in later relationships which they attribute to the offending.  Both have had incidents of significant self-harm and been prescribed anti-depressant medication in an attempt to assist with their psychological issues.

Sentencing judge's approach

1. The sentencing judge noted that the conduct against GL and AJ of which the appellant had been convicted was representative of a course of conduct by him over the period of the charges.  The sentencing judge noted that the offending appears to have been brought to an end as a result of the disclosure of the offences against AP and his prosecution in 2005.  The offences were representative of the ongoing deviant sexual interest which the appellant had in his own daughters.[18]

   [18] Primary ts 38.

2. The sentencing judge also noted that GL made a disclosure to a child protection worker on 30 August 2004.  That did not result in any action being taken against the appellant at that time, as GL was considered 'too vulnerable and unable to be a party to a prosecution of you'.[19]

   [19] Primary ts 38.

3. The sentencing judge described the appellant's offending as being 'plainly of the utmost seriousness'.[20]  His Honour identified the following aggravating features of the offending against GL and AJ:[21]

   (1)The offending commenced when his daughters were aged 4 or 5 years and continued for a substantial time, during which they were particularly vulnerable.

   (2)The offending represented a significant and continuing breach of the trust of a parent to a child, in circumstances where each of GL and AJ were plainly unable to protect themselves. 

   (3)The appellant used GL and AJ for his own sexual gratification.

   (4)The offending included occasions on which the appellant ejaculated.

   (5)The appellant used his position as their father to groom his victims at a young age, providing bribes and making threats that they should not tell anyone of his offending because they would not be believed.

   (6)Some of the offences against GL caused her pain.

   [20] Primary ts 38.

   [21] Primary ts 38 - 39.

1. The sentencing judge referred to the victim impact statements of GL and AJ, and observed:[22]

   Instead of experiencing happy childhoods, they had unhappy childhoods, which has had an impact upon them psychologically.  The impact has been such, as a result of your offending, that they have also experienced a physical impact over and above the offending itself.  They explained the position they were in, and the reason why they were unable to say anything and felt constrained to keep your secret with them.  It’s had a psychological impact.

   They both had substantial issues which have interfered in their upbringing and development as young people.

   [22] Primary ts 39.

2. The sentencing judge said that presumably, as a result of his incarceration for similar offending against AP, the appellant had an understanding and appreciation of the impact on the victims.[23]

   [23] Primary ts 39.

3. The sentencing judge noted that, with one exception, the appellant denied the offending when interviewed by police on 2 June 2016.  The sentencing judge considered that his denial of the offences at that time was 'not indicative of an offender expressing remorse as opposed to regret for the past'.[24]

   [24] Primary ts 40.

4. The sentencing judge noted the appellant's very late plea of guilty, and allowed a discount of 17% under s 9AA of the Sentencing Act 1995 (WA).[25]

   [25] Primary ts 41.

5. The sentencing judge noted that the appellant was 53 years old at the time of sentencing.[26]

   [26] Primary ts 41.

6. The appellant's sentencing counsel had indicated that, while serving his 2005 sentences, the appellant participated in a 12-month high intensity sex offender treatment program in Casuarina prison.  He completed his sentence in Albany regional prison, where he was involved in a transition to the community program.  Since release he has been subject to ANCOR obligations for over 10 years.  He has two convictions relating to a failure to notify police of a Facebook account and purchasing a motor vehicle without notifying police within the required time.  Counsel submitted that the appellant had learned to put boundaries in place and avoid situations that he can identify present as risks.[27]  The sentencing judge said: [28]

   I take into account the circumstances of your previous conviction on 24 November 2005, for offences of a similar nature committed against your eldest biological daughter.  I accept what has been said by your counsel with respect to your incarceration on that occasion and participation in 12-month sex offender program. 

   …

   I also accept that, as a result of your previous conviction and the counselling that you have undertaken, that you fully appreciate the need to put in place protective factors around young female children, particularly in a familial setting, and that you have not offended in that way since the commission of these offences.

   The sentencing judge concluded that the appellant was at low risk of reoffending.[29] 

   [27] Primary ts 30 - 31.

   [28] Primary ts 41 - 42.

   [29] Primary ts 42.

7. The sentencing judge said that he did not regard the delay in prosecution of offences relating to GL since the first disclosure of that offending as mitigating.  However, the sentencing judge noted the following passage of Mazza JA's judgment in The State of Western Australia v FJG:[30]

   However, if because of the delay between the offences and sentencing it appears that personal deterrence is no longer required or real progress has been made towards an offender's rehabilitation, or other mitigating factors positively emerge such matters may be taken into account.

   [30] The State of Western Australia v FJG [2012] WASCA 206 [54]

8. His Honour then imposed the individual sentences on the 2016 indictment noted at [5] above. In fixing the total effective sentence of 10 years 3 months' imprisonment, the sentencing judge expressly had regard to the totality principle. In doing so, the sentencing judge took into account:[31]

   [T]he previous terms of imprisonment served in relation to similar type offending by the offender against his eldest biological daughter and the time spent in custody in respect of those matters.

   [31] Primary ts 45.

Disposition

1. The sentencing judge did not make any express error in identifying the totality principle or the significance of the sentences on the 2005 indictment for the application of that principle in this case.  For the ground to succeed, the appellant must establish inferred error; ie, demonstrate that the total effective sentence imposed is unreasonable or plainly unjust.  Appellate intervention is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[32]

   [32] See JJR v The State of Western Australia [2018] WASCA 51 [105], [167].

2. In considering sentences imposed in comparable case, it is important to bear in mind the following well established propositions:

   (1)The guidance afforded by comparable cases is flexible rather than rigid.  The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. 

   (2)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

   (3)When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

3. Recently, in JJR, this court reviewed cases in which it had considered sentences for serious intra-familial sexual offending against children.[33]  The sentences imposed in JJR and the cases reviewed in JJR ranged from 7 - 16 years' imprisonment.  However, it is significant that, with three exceptions, all of those sentences were imposed after trial.  The exceptions are:

   (1)GMS v The State of Western Australia,[34] where a total effective sentence of 12 years 6 months' imprisonment was imposed in respect of offending against two victims.  However, the nature of the sexual offending in that case, which led to the pregnancy of one of the victims, was more egregious than in the present case.  The plea of guilty was entered only the day before trial and was not accompanied by remorse.

   (2)GHK v The State of Western Australia,[35] where this court imposed a total effective sentence of 14 years' imprisonment on resentence.  However, in that case there were 6 victims and the nature and extent of the sexual offending was, overall, more serious than the offending in the present case.[36] 

   (3)LJH v The State of Western Australia,[37] where this court imposed a total effective sentence of 10 years' imprisonment on resentencing.  While the offences were against a single 14 - 15‑year‑old complainant, the nature of the sexual offending against that complainant could be regarded as more serious than the offending against the individual complainants in the present case.

   [33] JJR [112] - [159].

   [34] GMS v The State of Western Australia [2009] WASCA 107.

   [35] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178.

   [36] See GHK[19].

   [37] LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.

4. We also note the following two cases decided since JJR.

5. In CAND v The State of Western Australia,[38] this court upheld a total effective sentence of 9 years 6 months' imprisonment, imposed after trial.  In that case, the offender sexually abused the single victim, who was his de facto child, on a regular basis. This offending started when the victim was around five or six years old.  The offender was convicted of three counts of indecent dealing and two counts of sexual penetration (involving cunnilingus and fellatio).  The counts on which he was convicted were representative of a continuing course of conduct.  The offending occurred over a 10 year period from when the victim was about 5 - 15 years of age.

   [38] CAND v The State of Western Australia [2018] WASCA 101.

6. In YDN v The State of Western Australia,[39] the offender treated his biological daughter as his regular sexual partner from about the time she was 15 years old. He pleaded guilty to a number of offences under s 329 of the Criminal Code, as well as offences involving child exploitation material and drugs.  Express error having been established, this court imposed a total effective sentence of 11 years 6 months' imprisonment.  Although the offending involved a greater degree of sexual penetration, the offending in YDN involved a single victim who was older than the complainants in the present case, and a much earlier plea of guilty.

   [39] YDN v The State of Western Australia [2018] WASCA 62.

7. The general principles relating to sentencing for offences of intra‑familial sexual abuse of children are well established.  As Buss JA, with whom other members of the court agreed, noted in FWB v The State of Western Australia:[40]

   The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children.

   It is well-established that in cases of intra-familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender.

   .…

   There is no 'tariff' for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. (citations omitted)

   [40] FWB v The State of Western Australia [2016] WASCA 118 [52] - [53], [57], cited in NN v The State of Western Australia [2018] WASCA 92 [88].

8. The appellant's offending involved sustained serious sexual abuse of his three daughters from a very young age.  That conduct destroyed the childhoods of his victims and the damage to their lives was ongoing at the time of sentencing.  It had a profoundly damaging effect on three victims.  The appellant did not demonstrate remorse.  He did not plead guilty in relation the offences charged in the 2005 indictment and he pleaded guilty to the offences charged in the 2016 indictment only a week before trial.

9. Notwithstanding these features, the total effective sentence of 14 years 3 months' for the offences against his three daughters was undoubtedly very high when compared to the sentences imposed in comparable cases.  It was longer than the total effective sentences imposed in all of the cases to which reference has been made, or was made in JJR, other than:

   (1)KMB v The State of Western Australia,[41] where a total effective sentence of 14 years 6 months' imprisonment was imposed after trial and the offence was aggravated by the pregnancy of the single complainant; and

   (2)ERA v The State of Western Australia,[42] where a total effective sentence of 16 years' imprisonment was imposed after trial and the offending involved a high degree of physical interference with four victims.

   [41] KMB v The State of Western Australia [2010] WASCA 212.

   [42] ERA v The State of Western Australia [2013] WASCA 163.

10. While the appellant's sexual offending against his daughters was very serious, and had a devastating effect upon them, it did not possess some of the more egregious features of the offending in the other cases referred to above. 

11. Further, the significance of personal deterrence was reduced in circumstances where the appellant had not re-offended since his imprisonment in 2005 and was found by the sentencing judge to be at low risk of re-offending.  The principle referred to in the passage of FJG quoted at [38] above was applicable in this case.

12. Finally, and most significantly for the disposition of the present appeal, the proper application of sentencing principles required that the sentence imposed reflect the pleas of guilty to the offences charged in the 2016 indictment.  While those pleas were entered late, they saved GL and AJ from having to relive their traumatic experiences while giving evidence in court.  It was important that the mitigating effect of the pleas of guilty be reflected, not only in the individual sentences, but in the total effective sentence.  That is particularly so in a case involving sexual offending against child complainants.  The process of giving evidence of such offences is often re-traumatising and damaging for the victims.  Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little incentive for an offender to plead guilty.  The absence of such an incentive will increase the number of victims who are exposed to the risk of further psychological harm through the requirement for them to participate in the trial process.  This court has previously recognised the appropriateness of a substantial discount for a plea of guilty in cases of sexual offending against children.[43]

    [43] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [298]; LWD v The State of Western Australia [2012] WASCA 76 [29], [40].

13. In our view, the total effective sentence of 14 years 3 months' imprisonment fails to properly reflect the mitigating effect of the pleas of guilty to the offences charged in the 2016 indictment and the rehabilitative effect of the appellant's prior incarceration.  We are satisfied that the total effective sentence was unreasonable or plainly unjust, and reached a level at which error of principle can be inferred from the result of the exercise of the sentencing judge's discretion.

14. Inferred error having been established, it is necessary for this court to resentence the appellant.  We would not interfere with any of the individual sentences imposed by the sentencing judge.  In our view, a total effective sentence of 12 years' imprisonment properly reflects the overall criminality involved in all the offences against AP, GL and AJ, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.  Taking account of the sentence of 4 years' imprisonment on the 2005 indictment, the appropriate total effective additional sentence on the 2016 indictment is therefore 8 years' imprisonment.

15. We would achieve that outcome by making the sentences for counts 4, 8 and 16 cumulative and the other sentences concurrent.

Orders

1. For the above reasons, the following orders should be made in the appeal:

   (1)Leave to appeal is granted on ground 2.

   (2)The appeal is allowed.

   (3)The orders made by the District Court of Western Australia for accumulation and concurrency of the individual sentences on the 2016 indictment are set aside and there are substituted orders that:

   (a)The sentences for counts 8 and 16 are to be served cumulatively upon each other and upon the sentence for count 4.

   (b)The sentences for counts 1, 6, and 9, 10, 11 and 14 are to be served concurrently with each other and with the sentences for counts 4, 8 and 16.

   (4)The sentence for count 4 is taken to have begun on 11 September 2017.

   (5)The appellant remains eligible for parole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZMM
Research Associate/Orderly to the Honourable Justice Mitchell

12 MARCH 2019