M v The State of Western Australia

[2007] WASCA 238

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   M -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 238

CORAM:   MILLER JA

HEARD:   2 NOVEMBER 2007

DELIVERED          :   9 NOVEMBER 2007

FILE NO/S:   CACR 77 of 2007

BETWEEN:   M

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :YEATS DCJ

File No  :IND 1686 of 2004

Catchwords:

Leave to appeal - Sexual offences - Six counts - One of penile penetration - Appellant 49 years of age when sentenced - Victim 14 ­ 15 years of age - Offences over a two­year period - Whether sentence of 7 years 9 months' imprisonment manifestly excessive

Legislation:

Nil

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr P L R Meyer

Respondent:     No appearance

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Lancaster v The Queen [1989] WAR 83

R v Chan (1989) 38 A Crim R 337

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

Woods v The Queen (1994) 14 WAR 341

1. MILLER JA:  The appellant seeks leave to appeal against an aggregate sentence of 7 years 9 months' imprisonment imposed in the District Court at Perth on 19 December 2006. 

Sentences

1. The appellant pleaded guilty to an indictment which contained four counts of indecent dealing and two counts of sexual penetration, one of which was penile penetration.  The appellant is now 50 years of age and committed the offences over a two‑year period between 1999 and 2000.  The offences were committed against his step‑daughter who was aged between 14 and 15 years at the time.

2. The sentences imposed by the learned sentencing judge were 18 months' imprisonment on each of three counts of indecent dealing (counts 2, 3 and 5), 3 years' imprisonment for sexual penetration by fellatio (count 6 on the indictment), 4 years 9 months' imprisonment for the offence of penile penetration (count 7 on the indictment) and 2 years 5 months' imprisonment for the final count of indecent dealing (count 8 on the indictment).  The sentences imposed on counts 2, 3, 5 and 8 were ordered to be served concurrently, but the sentences on counts 6 and 7 cumulatively.  This meant that the appellant was sentenced to a total of 7 years 9 months' imprisonment.  He was made eligible for parole.

Grounds of appeal

1. The appellant seeks leave to appeal on three grounds.  They are stated as follows:

   Ground 1

   1.The learned sentencing Judge erred in that the total sentence imposed was manifestly excessive having regard to:

   (a)the Appellant's pleas of guilty which, though not fast‑track pleas, followed negotiations that commenced as early as March 2004;

   (b)the Appellant's previous good character and history of community service.

   Ground 2

   2.The sentence imposed was beyond the range of sentence usually imposed in cases of sexual offending involving a single complainant and, as such, was manifestly excessive.

   Ground 3

   3.The individual sentences imposed for Counts 6 and 7 were themselves manifestly excessive such that, consequently, the total sentence itself was manifestly excessive.

The facts

1. The learned sentencing judge was presented with a statement of agreed facts.  Those facts revealed that the appellant was the de facto father or step‑father of the complainant.  He was in his early 40s at the time the offences were committed.  At that time the complainant was aged between 14 and 15 years. 

2. Count 2 on the indictment was an offence of indecent dealing.  On an evening when the complainant's mother was out of the house, the appellant told the complainant to take off her pyjama pants and underwear.  He obtained a small hand mirror and placed it between her legs so that she could see her vagina.  He pointed out different areas of her genitalia. 

3. Count 3 on the indictment was another charge of indecent dealing which arose out of the same facts.  The appellant took the complainant to his bedroom and sat her on the bed.  He removed some pornographic magazines from a bedside table and showed them to the complainant.  She was naked from the waist down. 

4. Count 5 also occurred at the same time.  The appellant exposed his penis and took the complainant's hand and placed it upon it for several minutes.

5. Count 6 was a count of sexual penetration by fellatio.  It occurred at a country town where the appellant was the principal of a country primary school.  The complainant's mother was in Perth at the time.  The appellant and the complainant were in the lounge room of the house watching television when the appellant started to rub the complainant's back.  He took off her clothing except for her underwear and then removed his own clothing.  He placed his erect penis into the complainant's mouth and caused her to suck it for several minutes. 

6. Count 7 was another count of sexual penetration.  This offence occurred in the bush near the country town where the appellant and the complainant had driven to collect fire wood.  The appellant stopped his vehicle went to the passenger's side door and opened it.  The complainant screamed and cried, but the appellant removed her underwear exposed his penis, pushed it into the complaint's vagina and ejaculated after intercourse. 

7. Count 8 on the indictment occurred at a time when the complainant was 15 years of age.  She was at a school vocational camp in Perth.  The appellant was at a primary school principals' conference.  The appellant drove the complainant back to the country town from Perth.  The appellant stopped the vehicle during the course of the trip.  He produced a vibrator from the glove box of the vehicle and told the complainant that he had a present for her.  The complainant told the appellant that she had her period and that she did not want the appellant to touch her.  Nevertheless, he turned on the vibrator and placed it on the external area of the complainant's vagina for several minutes.  He then removed it, telling the complainant that this was how it was to be used. 

Sentencing

1. The learned sentencing judge recited the facts of the case and then turned to the appellant's plea of guilty.  She pointed out that the appellant pleaded guilty on the date of his trial.  She accepted that there had been an extended period of negotiation in relation to the plea and that it took a long time to reach agreement in relation to the facts. 

2. The learned sentencing judge then turned to matters personal to the appellant.  She noted that he was 49 years of age and had led an exemplary life until the commission of the offences in question.  He had done a good deal of community service and was of previous good character.

3. The learned sentencing judge made reference to pre‑sentence and psychological reports.  Initially, the appellant had refused to discuss the matters with those responsible for writing the reports, but later he changed his attitude and provided limited information.  The learned sentencing judge pointed out that the appellant had tried to distance himself from the commission of the offences and to minimise his own conduct.  He blamed work stress and other factors for what he had done. 

4. The learned sentencing judge took the view that the appellant could blame nobody but himself and that he had committed a very severe breach of trust, being the step‑father living in the home where the complainant was residing. 

5. The learned sentencing judge accepted that the appellant's pleas of guilty provided mitigation but considered that they were too late to provide substantial mitigation.  Her Honour made reference to the victim impact statement of the complainant, pointing out that she had lost a year of university education because of stress suffered in consequence of the offences.  Further, she was estranged from her family because the appellant's wife was supporting him. 

6. The learned sentencing judge took account of the pleas of guilty and remorse and made a 10% reduction for those factors.  Her Honour considered the totality principle and determined that only counts 6 and 7 would be cumulative in order to avoid a crushing sentence.  The result was the sentence of 7 years 9 months' imprisonment.

Application for extension of time to appeal and for the filing of the appellant's case

1. The appellant first requires an order for extension of time for filing the notice of appeal.  Sentence was imposed on 19 December 2006, but it was not until 28 June 2007 that a notice of appeal was filed.  There is also an application to extend time to file the appellant's case.  The appellant's case was due on 23 August 2007 and was not filed until 11 October 2007.   

2. No satisfactory explanation has been given for the delay involved in the filing of the notice of appeal and the appellant's case.  The appellant's solicitor, Robert David Young, swore an affidavit on 28 June 2007 indicating that he was contacted by the appellant in or about February 2007 and provided with his file by former solicitors on 12 March 2007.  Funding for the appeal was not provided until 25 June 2007 and the documents were filed as soon as possible thereafter.  A letter from Mr Young to the appellant's counsel describes the affidavit as 'fairly brief'.  This is a correct description.  It provides no real explanation or excuse for the delay.  In his letter to the appellant's counsel dated 4 October 2007, Mr Young says that legal aid was finally refused on 20 April 2007 and it took the appellant's mother 'a bit of time to arrange funding'.  None of this is satisfactory. 

3. The delay in filing the notice of appeal was six months.  This is a substantial period.  The delay in filing the appellant's case was almost two months, which is unacceptable if the Court of Appeal is to function in a timely manner. 

4. In circumstances where there has been a lengthy delay, the court will require exceptional circumstances to be shown before granting an extension of time unless it can be shown that there will be a miscarriage of justice if an extension is not granted:  R v Chan (1989) 38 A Crim R 337, 339. See also Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ).

5. In my opinion, unless a substantial miscarriage of justice could be shown, no extension of time should be granted to the appellant for the filing of the notice of appeal.  The same considerations apply to the filing of the appellant's case which was nearly two months out of time.  This requires a consideration of the merits of the proposed grounds of appeal.

Grounds of appeal

1. The first ground contends that the total sentence was manifestly excessive having regard to the pleas of guilty and the appellant's previous good character and history of community service.

2. The pleas of guilty were taken into account by the learned sentencing judge.  The allowance for the pleas was only 10%, but they were late pleas.  It is true that there were negotiations leading to the ultimate pleas, but those pleas did not come until the day the case was listed for hearing.  The prosecution accepted there had been lengthy negotiations in relation to plea and that it was known that the matter would not go to trial.  It was therefore unnecessary for the complainant to be proofed.  However, as the learned sentencing judge pointed out during the course of the hearing, for the first half of the year 2006 the complainant believed that she would be required to give evidence.

3. The allowance made for the pleas of guilty was at the lower end of the range of discount which is appropriate, but the allowance was not in my view inadequate.  It reflected the fact that the appellant argued about the detail of the facts until the date proposed for the hearing of the case and agreement leading to the pleas was only struck at the last minute. 

4. The appellant's previous good character and history of community service were recognised by the learned sentencing judge and taken into account by her Honour. 

5. However, it is well established that in cases involving offences of a sexual nature, the fact that the offender is otherwise of good character can have only little weight because the offences are of such a nature that until brought to light they generally do not impinge upon others nor upon their perception of the offender:  see VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [320] ‑ [321] and cases cited therein.

6. In my opinion, sufficient consideration was given by the learned sentencing judge to the question of good character and history of community service. 

Grounds 2 and 3

1. These two grounds can be dealt with together.  They complain that the sentences imposed were beyond the range normally imposed and that the sentences individually imposed for counts 6 and 7 were in themselves manifestly excessive.

2. VIM v The State of Western Australia contains an authoritative survey on the sentences commonly imposed for sexual offences. As the court pointed out at [307] ‑ [308] the sentences for multiple counts of sexual offending against children had significantly firmed up since Anderson J made a survey of the cases in Woods vThe Queen (1994) 14 WAR 341. This is because courts have over the years gained a better understanding of the long‑term effects of such offending upon children concerned in such offences: VIM v The State of Western Australia [288] and cases therein cited.

3. In cases where there has been prolonged sexual offending against a child or children, the range of sentences, taking into account the transitional provisions, is between 6 years 8 months and 12 years 8 months.  This was a 10 to 19‑year range prior to the application of the transitional provisions:  VIM v The State of Western Australia [309].

4. In the present case, the appellant committed six offences.  Three occurred at the same time, but the other three were at separate and distinct times.  The offences occurred over a total period of two years.

5. The offender was in a position of trust insofar as the complainant was concerned.  Furthermore, he was the principal of a primary school and of all people he was one who should have appreciated the importance of the position of trust in which he was placed.  Nevertheless, he chose to commit a range of sexual offences against his step-daughter in circumstances where there was a very substantial age gap between them and where the complainant was between only 14 and 15 years of age at the time of the commission of those offences. 

6. In these circumstances, it seems to me that an aggregate sentence of 7 years 9 months falls well within the range referred to in VIM v The State of Western Australia [309].

7. The individual sentences imposed on counts 6 and 7 were, in my opinion, within range.  Offences of penile penetration are to be viewed seriously.  This is especially so in the circumstances of the present case where the complainant was crying and resisting the appellant's approaches.  It could not, in my view, be said that a sentence of 4 years 9 months (7 years 2 months prior to the transitional provisions) was excessive for that offence.  Nor could it be said that a sentence of 3 years' imprisonment (4 years 6 months prior to the application of the transitional provisions) was excessive for the offence of sexual penetration by fellatio.  It was a very bad offence. 

8. The facts which underlay both counts 6 and 7 on the indictment were serious and, in my view, the learned sentencing judge was correct to say that count 7 at least was at the very top of the range for that sort of offending.  It may not have involved threats of violence or actual violence, but the complainant was crying and screaming and was forced into sexual intercourse.  In my view, count 6 was at the upper end of the range of seriousness for an offence of its type.  The complainant was very young and the offence was committed over a lengthy period.  

9. In the circumstances, I would refuse leave to appeal.  The applications for extension of time within which to file the notice of appeal and the appellant's case are also refused.