M v The State of Western Australia

[2006] WASCA 256

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   M -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 256

CORAM:   STEYTLER P

WHEELER JA
McLURE JA

HEARD:   14 NOVEMBER 2006

DELIVERED          :   28 NOVEMBER 2006

FILE NO/S:   CACR 71 of 2006

BETWEEN:   M

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MULLER DCJ

File No  :IND GER 11 of 2005

Catchwords:

Sentencing - Sexual offences - De facto child - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr R P Arndt

Respondent:     Ms S M de Maio

Solicitors:

Appellant:     George Giudice

Respondent:     State Director of Public Prosecutions

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

Bell v The Queen [2001] WASCA 40

Bosworth v The Queen [2004] WASCA 43

PDS v The State of Western Australia [2006] WASCA 20

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

Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

AB v The Queen (1999) 198 CLR 111

B v The Queen [2002] WASCA 236

Bishop v The Queen [2003] WASCA 79

Broome v The Queen [1999] WASCA 202

D v The Queen [2003] WASCA 33

G v The State of Western Australia [2005] WASCA 150

Germain v The State of Western Australia [2004] WASCA 293

Indich v The Queen [1999] WASCA 146

Jarvis v The Queen (1993) 20 WAR 201

Lowndes v The Queen (1999) 195 CLR 665

LSC v The Queen [2003] WASCA 303

Marris v The Queen [2003] WASCA 171

Morley v The Queen [2001] WASCA 49

Pendleton v The Queen [2002] WASCA 4

Postiglione v The Queen (1997) 189 CLR 295

R v CW [2000] WASCA 81; (2000) 111 A Crim R 287

R v GP (1997) 18 WAR 196

R v Leggett [2000] WASCA 327

R v Sweetlove, unreported; CCA SCt of WA; Library No 960555; 23 September 1996

R v Western [2001] WASCA 194

Trescuri v The Queen [1999] WASCA 172

Wong v The Queen (2001) 207 CLR 584

1. STEYTLER P:  I agree with Wheeler JA.

2. WHEELER JA:  This is an appeal against a total effective sentence of 10 years' imprisonment, with an order for eligibility for parole, which was imposed upon the appellant on 1 May 2006.  It was backdated to take account of the time the appellant had spent in custody prior to sentence.  It is not necessary to refer to the individual sentences making up this total, since it appears that no issue is taken with any of them.  The appeal appears to be directed only to the total sentence imposed. 

3. The offending in respect of which these sentences were imposed comprised seven counts of indecent dealing with a de facto child under the age of 16, 15 counts of sexual penetration of a de facto child under the age of 16, and three counts of procuring a de facto child under the age of 16 to engage in sexual behaviour.  The offending took place over a period of two months in mid‑2004.  It was asserted by the State, and not disputed by the appellant's counsel when the appellant was sentenced, that the counts of which the appellant was convicted were representative of a course of conduct involving offending approximately every second night over that two‑month period.

4. Summarising the facts of the offending briefly, the appellant was at the time 37 years of age and was legally married to the complainant's mother.  The complainant, who was 12 years of age, was therefore his stepdaughter.  The appellant was living with the complainant, her mother and her siblings, for approximately five years.  The conduct involved in the first four counts consisted of requiring the complainant to rub his penis, applying baby oil to her vagina, procuring her to rub her vaginal area with a vibrator which he had switched on, and taking another vibrator and inserting it into his own anus.  He then masturbated in front of the complainant until he ejaculated.  All of that conduct occurred on one occasion.  Other counts on other occasions also involved digital penetration by the appellant of the complainant's vagina, requiring her to digitally penetrate her own vagina, requiring the complainant to penetrate her own vagina with the vibrator, and penetrating the complainant's vagina and anus with either the vibrator or his penis on different occasions.  There was also one count each of cunnilingus and fellatio.  On some occasions, the appellant engaged in only one of the various acts which I have mentioned.  On other occasions, there was a course of conduct consisting of a variety of sexual acts within a relatively short space of time.  Not surprisingly, on a number of occasions, the complainant complained of pain.  On one of the occasions, the appellant also showed the complainant an R‑rated pornographic video.

1. When the appellant was first interviewed on video by police, he admitted having sexual intercourse with the complainant on one occasion, on "one of those days where nothing was going right".  He later said he offended on three occasions, but denied other complaints.  His counsel explained to the learned sentencing Judge that, in the end, he pleaded guilty to all charges on the basis that, although he did not have any recollection of some of them, he accepted that the complainant was a truthful person and that the events had occurred as she described.  It was said the reason for the initial plea of not guilty was "some confusion in his own psychological issues".  In any event, he had indicated an intention to enter pleas of guilty to all counts approximately four months after being charged.

2. The appellant's personal circumstances, and the circumstances in the period leading up to the offences, were as follows.  The appellant was one of eight children, and had had a difficult childhood, being mistreated by his parents.  He was sexually abused by the manager of a local service station, where he was employed from the age of 12 until the age of 17, his employer threatening to kill the appellant if he ever told anyone.  One of his younger siblings had committed suicide, apparently relatively recently.  The two principal adult relationships of the appellant's life were quite some time apart.  His relationship with his first partner took place when he was in his early 20s and was apparently relatively short‑lived.  It was said that it had terminated due to his partner's infidelity with a friend.  His relationship with the complainant's mother began in about 2000.  She, at that stage, had three children, and the appellant has had one child with her.  That child has Down Syndrome and is in foster care.  All four children have some health problem or disability, the complainant apparently having some degree of intellectual disability. 

3. In the period leading up to these offences, it appears that the appellant's wife became ill, spending some time in Graylands.  He was then the primary caregiver for the children, but found it difficult to cope, and resorted to excessive use of alcohol and cannabis.  Heavy alcohol consumption and use of cannabis had been a feature of his life at earlier times. 

4. So far as the complainant was concerned, the victim impact statement and the statement prepared by her foster mother do not deal particularly with the circumstances of the abuse.  Of more importance to the complainant is the unfortunate fact that her mother had insisted on maintaining a relationship with the appellant.  During occasions when the appellant was on bail pending his arraignment and sentence, the complainant's mother took him back into the family home, as a result of which the complainant and her sister were placed into foster care.

5. There was in respect of the appellant a pre‑sentence report, a report by the senior clinical intervention officer in the Department of Corrective Services (a social worker), and a psychologist's report.  All contain the same information concerning the appellant's personal circumstances and background, but they are different in tone. 

6. The psychologist who the appellant consulted is, broadly, of the view that the appellant is truthful in saying that he cannot recall the offences, but that he is very remorseful for them.  The psychologist's own view is that the appellant's offending stemmed mainly from a combination of flashbacks to childhood abuse suffered by the appellant and extreme intoxication.  He ventured into the area of psychiatric diagnosis, suggesting that the appellant suffered post‑traumatic stress disorder.  The psychologist also speculated that anxiety over the possible loss of his relationship with his wife may have been a contributing factor to the offending. 

7. He considers that the appellant does not pose a threat to other children and that the offending was a "one‑off" aberration.  His view is that the appellant had been suffering from extremely difficult circumstances at the time of the offending, but that he had grown and matured a great deal since the time of the offences. 

8. The author of the pre‑sentence report, the Community Corrections Officer, considered that the appellant had "a tendency to externalise blame for his offending behaviour".  The social worker noted, in relation to the suggestion that the appellant had been coping in difficult circumstances where he was denied help, that the appellant had "no idea what kind of help he was looking for", and that he had been offered substantial assistance by the Department of Community Development, including involvement in the "Stronger Families" programme.  The social worker considered that, in the light of the appellant's claim of lack of memory, it was not clear what had actually precipitated the offending.  Her view was that it was possible that it could have been to do with using sex as coping and gratification, or alternatively it could have been related to a "sense of grievance and anger".  She inclined towards the latter view, in the light of the degree of physical abuse and elements of degradation of the complainant. 

9. On the important question of the risk of reoffending, the social worker noted that the appellant's score on the "Static 99" statistical risk assessment measure placed him in the low risk category.  However, the Department of Corrective Services had adopted a risk assessment model which looked to the treatment needs of the offender in areas which had been shown to be related to risk of sexual reoffence.  In all four relevant areas, she assessed the appellant as having significant treatment needs and therefore as potentially having an "elevated" risk of reoffending.

10. With one exception, his Honour either accepted, or did not positively reject, those aspects of all reports which were most favourable to the appellant.  He referred to the reports, setting out many conclusions of the psychologist described above (omitting the reference to post‑traumatic stress disorder, which was not within the psychologist's expertise).  His Honour then referred to the submissions of counsel for the appellant.  These were to the effect that less emphasis was required in the appellant's case on the need for rehabilitation and personal deterrence, since he understood the wrongfulness of his actions, accepted responsibility, was genuinely remorseful, and had put steps into place to correct his behaviour.  It is plain his Honour accepted those submissions, since he went on to say "those points are certainly in your favour".  His Honour also accepted that, by pleading guilty, the appellant was entitled to a substantial discount from what would otherwise be the appropriate sentence. 

11. The only conclusion of the psychologist which his Honour positively rejected was that the appellant's conduct was "an aberration".  His Honour observed that that conclusion simply did not sit with the facts as presented to the Court, and was illogical.  His Honour was of that view because of the persistence of the indecent treatment of the child over the two‑month period.

12. Having accepted the majority of the favourable matters put forward in the psychological report, and having referred to the need for a discount because of the plea of guilty, his Honour noted there were, however, certain matters which made the appellant's offending very grave.  He noted that sexual penetrations of this kind generally are regarded very seriously by the law.  Also in the present case, however, there was the breach of the child's trust, the disparity in age, the sexual naivety of the child, and the nature of the conduct, including the exposure to pornographic material and the use of the vibrator.  So far as the period of the offending was concerned, his Honour agreed that, unlike some cases, the period in question was relatively short, but he noted that the offending during that period was "intense".  His Honour considered that general deterrence, in particular, was a factor of "extreme importance" in the present case. 

13. His Honour then summarised the effect of two authorities of this Court, being the often cited case of Woods v The Queen (1994) 14 WAR 341 at 354 and the recent case of PDS v The State of Western Australia [2006] WASCA 20. His Honour imposed individual sentences of which, as I have noted, no complaint was made, and made significant numbers of them concurrent, in order to take account of the totality principle. The sentencing remarks his Honour made were carefully structured, and noted all relevant matters.

14. The first ground of appeal asserts that his Honour incorrectly applied the totality principle and, as a result, imposed a head sentence which was "manifestly excessive and crushing".  It is submitted that this was demonstrated when regard was had to the plea of guilty, the appellant's personal circumstances, the fact that the offences were committed against a single victim, that they were committed within a period of two months, and the contents of the psychological report.  Ground 2 asserts that his Honour erred in rejecting the opinion of the psychologist that the offences were "an aberration". 

15. So far as ground 2 is concerned, it seems to me that nothing turns on it in any event.  That is because his Honour specifically accepted that this was not a case in which personal deterrence was of such importance as it might often be, since his Honour accepted that the appellant had recognised his offending, and was "determined not to commit that type of offence again". 

16. However, to the extent that it is relevant, it seems to me that it was open to his Honour to reject the conclusion of the psychologist.  It is by no means clear from the psychologist's report that he understood that the appellant's offending involved not only the counts on the indictment, but also considerably more sexual offending against the complainant during the two‑month period.  It is clear from the psychologist's report that he had before him the complainant's statement to police officers, but he did not anywhere set out how often, in his view, offending against the complainant had occurred.  Further, it was clear that the psychologist's explanation for why the offending had occurred was somewhat speculative, given that the appellant himself was unable to provide much information about the circumstances, since he claimed not to remember many of the offences.  In those circumstances, it is my view that his Honour was entitled to conclude that sexual offending of that kind, and of that intensity, could not be simply dismissed as an "aberration".  As I have noted, his Honour did appear to accept that the appellant was unlikely to reoffend. 

17. So far as totality is concerned, there seem to be two strands to the submissions.  The first strand concerns the relationship between the total sentence imposed and the circumstances of the offending, while the second strand relates to the circumstances of this particular offender. 

18. As to the first strand, the contention is that a total sentence of the order of 10 years, after the transitional provisions, is imposed only where offences are committed over a relatively longer period of time, or against more than one victim, or where offences of another kind have taken place at the same time.  All of that may be an accurate description of other cases of child sexual abuse which are referred to by the appellant.  It does not follow that those cases constitute an exhaustive statement of the circumstances in which a sentence of that order would be appropriate. 

19. Although the period in question here was relatively short, his Honour was correct in characterising the offending during that period as "intense".  It involved a very great variety of different sexual acts, exposing the unfortunate complainant to a very wide variety of adult sexual behaviour.  It involved offending on many occasions, so that, as was said in VIM v The State of Western Australia [2005] WASC 233; (2005) 31 WAR 1, it could be said that the appellant had "not simply given way to an impulse on an occasion, but has chosen repeatedly to commit serious offences" (at [294]). The offending was a bad example of offending of this kind, and the total sentence imposed was not disproportionate to it, although for reasons which I shortly explain, I would regard it as severe.

20. The second strand relies upon the mitigating factors, and asserts they were given insufficient weight.  It overstates the appellant's circumstances.  The submissions refer to cases which are authority for the proposition that mental illness, disability or impairment may mitigate sentence where it reduces the moral culpability of the offender.  There is nothing in the reports to suggest that the appellant could be described as a person with a mental illness or impairment.  However, it is the case that the psychologist's report, which his Honour appeared to have accepted in this respect, suggested that the offending occurred at a time at which the appellant was under "extreme stress" because of his wife's mental illness and his inability to cope with the stresses of day‑to‑day living, together with the continuing effects of his own sexual abuse as a child and his abuse of cannabis and alcohol. 

21. Looking at the range of sentences appropriate to offences of this kind, it is convenient to start with this Court's survey in VIM.  At [309] of that case, the Court said:

    "Finally, in relation to offences of this kind (that is, cases of frequent or prolonged sexual offending against a child or children), it is convenient to undertake the exercise of converting the sentences which we have discussed into those which would be imposed after the transitional provisions came into operation on 31 August 2003.  The 'lower end' cases of up to 4 years formerly, would now be up to 2 years and 8 months; the most common sentence one would expect to see would be approximately 6 years and 8 months, and about two‑thirds of sentences in such cases would fall within the range 6 years 8 months to 12 years 8 months (the former 10 to 19‑year range).  A term other than immediate imprisonment would be imposed only in the most unusual of cases (eg Marris v The Queen [2003] WASCA 171, where the six counts all occurred over the space of one evening, the offender and complainant were unrelated, the offender was a particularly immature young man, the complainant was 13, and there was no question of any force, threat, or 'grooming'). Those sentences, we stress, are the range one would expect to see after a plea of guilty."

22. This case is plainly not one at the "lower end".  The sentence imposed in this case was more than the "most common" likely sentence of 6 years 8 months, but is certainly within the range of 6 years 8 months to 12 years 8 months.  That is, while within an expected range, it is a relatively severe sentence within that range.  The question then arises as to how this case compares with other cases involving relatively severe sentences within the range referred to above.

23. A case which appears to me to be not dissimilar to the present case, and which is relatively recent, is Bosworth v The Queen [2004] WASCA 43. That case involved 10 counts, which were "representative" counts involving indecent assaults, cunnilingus, fellatio, digital penetration and penetration of the complainant's vagina with the appellant's penis. The complainant in that case was roughly the same age as the complainant in the present case. The marriage in that case was failing and there was alcohol abuse on the appellant's part. The offending took place over a somewhat longer period - a year approximately - and the appellant in that case was the complainant's natural father. However, the complaints in that case were relatively stale, having occurred some 10 years prior to conviction, and did not involve quite the same intensity of offending or the same range of sexual behaviour as in this case. In that case, too, the offending was said to be out of character and the appellant had voluntarily attended counselling. The sentence imposed in that case, following a plea of guilty, would equate to one of 9 years after the transitional provisions.

1. When the various similarities and differences between Bosworth and the present case are weighed up, it appears to me that the present case was a case which should be regarded as marginally worse than Bosworth, so that the sentence imposed was appropriately proportionate to the sentence imposed in that case.

2. The learned sentencing Judge referred to the case of PDS, in part it seems because it was a relatively recent decision of this Court.  He regarded the offending in the present case as worse than that in PDS.  PDS involved some six counts, which included vaginal and anal intercourse with the complainant at a time when she was between 12 and 16 years of age.  There was a background of other sexual abuse, although not of the intensity of the offending in the present case.  There was also a background of a degree of excessive discipline of the complainant, which appears to have been the means by which the complainant was intimidated into complying with the appellant's wishes.  The complainant was the appellant's natural daughter.  The offender was, as is common in such cases, a person with no relevant other convictions.  He had a family background which was somewhat unfortunate, involving domestic violence perpetrated by his father upon his mother.  He did not plead guilty and demonstrated no remorse, although psychological reports suggested that, given time, he might be willing to accept responsibility.  A sentence of 12 years' imprisonment in those circumstances was described as "perhaps severe", but within an appropriate range.  Again, it seems to me that the criminality in PDS was similar to that in the present case, although I would regard it as open to his Honour to form the view, as he did, that the present case was somewhat worse than PDS.  Allowing an appropriate discount, would suggest that if PDS had entered a plea of guilty, a sentence of 8 or 9 years would have been imposed.

3. It appears to me, having regard to the cases mentioned above , that the sentence imposed on the appellant was severe, but not outside an appropriate range.  That is so even having regard to the various mitigating factors, since as Anderson J noted in Bell v The Queen [2001] WASCA

40, in cases of intra‑familial sexual abuse, the offender will often be a person who had led an otherwise blameless life, and will usually be most unlikely to reoffend once the offending in question is disclosed. His Honour correctly observed that sentencing objectives in cases of this kind "focus on the need to protect young, defenceless children from abuse at the hands of adults who are in a position of trust and authority over them in the family setting" (at [12]).

1. In this case, the mere fact that his Honour accepted, as he apparently did, that the appellant was of otherwise good character and was not in need of personal deterrence, would not, therefore, suggest that an otherwise appropriate sentence should be reduced on account of those matters.  It is true that the appellant appears to have been in a difficult position in coping with four children in circumstances where his wife was not able to assist him.  It is also true that he appears to have had some psychological difficulties.  However, those stresses are not extreme, and the psychological difficulties do not appear to be causally related to the offending.  In those circumstances, it is my view that little weight should be given to them also.  I would therefore dismiss the appeal.

2. McLURE JA:  I agree with Wheeler JA.