McAlpine v The State of Western Australia
[2018] WASCA 195
•30 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McALPINE -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 195
CORAM: BUSS P
MAZZA JA
HEARD: 7 AUGUST 2018
DELIVERED : 30 OCTOBER 2018
FILE NO/S: CACR 79 of 2018
BETWEEN: IAN STUART McALPINE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: QUAIL DCJ
File Number : IND 235 OF 2017
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of 7 counts of sex offending - Appellant a child psychiatrist and the victim his patient - Total effective sentence of 5 years 2 months' imprisonment - Totality principle
Legislation:
Criminal Code (WA), s 324B, s 324D
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S Vandongen SC |
| Respondent | : | No Appearance |
Solicitors:
| Appellant | : | Mark Andrews Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Juma v The State of Western Australia [2011] WASCA 54
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Roffey v The State of Western Australia [2007] WASCA 246
Singh v The State of Western Australia [2017] WASCA 47
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Doyle [2017] WASCA 207
JUDGMENT OF THE COURT:
The appellant has applied for leave to appeal against sentence.
The appellant was charged on indictment with 18 counts which alleged that he committed various sexual offences against two different female victims. Counts 1 to 10 related to AL and counts 11 to 18 to DC.
On 16 March 2018, the appellant was convicted, after a trial in the District Court before Quail DCJ and a jury, of counts 1, 2, 3, 4, 5, 6 and 10. The State discontinued count 13. The appellant was acquitted of the other counts.
Count 1 alleged that on an unknown date between 1 November 1988 and 1 November 1990, at Wembley, the appellant unlawfully and indecently assaulted AL by kissing her lips, contrary to s 324B of the Criminal Code (WA) (the Code).
Count 2 alleged that on another unknown date between 1 November 1988 and 1 November 1990, at Subiaco, the appellant unlawfully and indecently assault AL by putting his tongue in her mouth, contrary to s 324B of the Code.
Count 3 alleged that on the same date and at the same place as in count 2, the appellant unlawfully and indecently assaulted AL by putting her hand on his penis, contrary to s 324B of the Code.
Count 4 alleged that on another unknown date between 1 November 1988 and 1 November 1990, at Subiaco, the appellant unlawfully and indecently assaulted AL by kissing her breasts, contrary to s 324B of the Code.
Count 5 alleged that on the same date and at the same place as in count 4, the appellant sexually penetrated AL without her consent, by engaging in cunnilingus, contrary to s 324D of the Code.
Count 6 alleged that on another unknown date between 1 November 1988 and 1 November 1990, at Subiaco, the appellant sexually penetrated AL without her consent, by penetrating her mouth with his penis, contrary to s 324D of the Code.
Count 10 alleged that on 1 November 1989, at Subiaco, the appellant sexually penetrated AL without her consent, by penetrating her vagina with his penis, contrary to s 324D of the Code.
At all material times:
(a)the maximum penalty for an offence contrary to s 324B of the Code was 4 years' imprisonment; and
(b)the maximum penalty for an offence against s 324D of the Code was 14 years' imprisonment.
On 18 April 2018, after hearing submissions from defence counsel and the prosecutor, the trial judge sentenced the appellant as follows:
(a)count 1: 9 months' immediate imprisonment;
(b)count 2: 9 months' immediate imprisonment;
(c)count 3: 12 months' immediate imprisonment;
(d)count 4: 12 months' immediate imprisonment;
(e)count 5: 2 years 6 months' immediate imprisonment;
(f)count 6: 2 years 2 months' immediate imprisonment; and
(g)count 10: 3 years' immediate imprisonment.
His Honour ordered that the sentence for count 6 be served cumulatively upon the sentence for count 10 and that the sentences for the other counts be served concurrently with each other and concurrently with the sentence for count 10. The total effective sentence was therefore 5 years 2 months' imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 16 March 2018.
The sole ground of appeal alleges, in essence, that the total effective sentence infringed the first limb of the totality principle.
We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.
The facts and circumstances of the offending and the trial judge's sentencing remarks
The facts and circumstances of the offending, as found by the trial judge, were as follows.
When he committed the offences, the appellant was a child psychiatrist practising in Perth. The appellant was born on 9 November 1947. At the time of the offending he was aged between 40 and 42 years.
In 1989, AL had been referred to the appellant for the treatment of her depressive disorder. She had overdosed on sleeping tablets while awaiting her TEE results. AL was aged 17 years and had enrolled to study medicine at university. She was having difficulties with her family relationships.
In about May 1989, AL was admitted to Cambridge Hospital. She was under the appellant's care. AL remained as an in‑patient for some time. The appellant made a bet with AL that her health would improve while he was away on a business trip. The amount of the bet was $3. When the appellant returned, AL gave him a heart‑shaped frame with three $1 coins in it. She presented him with the gift because she felt better and she credited him with her improvement. By this time, AL was dependent on the appellant, not only for psychotherapy, but also for emotional support.
As to count 1, after being presented with the gift in her hospital room, the appellant kissed AL on the lips and gave her a hug. He said, 'this is our secret'. It was a passionate, sexual kiss. The jury, by its verdict, found the kiss to have been indecent and made without AL's consent. AL was surprised and thought it meant the appellant loved her.
The appellant did not love AL. During the next year, he cynically exploited AL for his own sexual gratification. She was still a child aged 17 and he was more than twice her age.
Counts 2 and 3 occurred at the appellant's rooms during a scheduled treatment session. The appellant kissed AL sexually (using his tongue) on his treatment couch. He also engaged in uncharged conduct, namely fondling and licking her breasts. The appellant placed AL's hand on his erect penis. He told her that she was special. He played on her insecurities and took advantage of her. His Honour found that sexual conduct of this kind was a 'recurring theme' and occurred at many of the scheduled treatment sessions in his rooms (ts 845). His Honour emphasised that the appellant was not to be sentenced for the uncharged conduct, but the conduct demonstrated that the offences of sexual kissing and touching were not isolated incidents.
Counts 4 and 5 also occurred in 1989, when AL was aged 17. The offending involved the appellant kissing AL's breasts and performing cunnilingus on her. The trial judge found that AL 'felt dirty and soiled, but did not know how to stop [the appellant]' (ts 846). During the commission of count 5, the appellant engaged in uncharged conduct, namely inserting his fingers into AL's vagina. His Honour noted AL's belief that at about this time she was in a fragile mental state and had begun cutting herself. His Honour said that although AL 'felt dirty and ashamed, she needed [the appellant's] love' (ts 846).
Count 6 also occurred when AL was aged 17. It was the first incident of fellatio. The offence occurred in the appellant's rooms and was preceded by the kissing and fondling of AL's breasts. The appellant put his penis in AL's mouth and ejaculated. His Honour found that fellatio occurred on multiple occasions between the appellant and AL. Although incidents of this kind occurred after her 18th birthday, on the first occasion she was aged 17. His Honour also found that comments made by the appellant to AL at the time revealed that the appellant had abandoned his responsibilities as her treating psychiatrist.
As to count 10, the appellant planned to have penile/vaginal sex with AL on her 18th birthday. She was a virgin. During a scheduled treatment session in his rooms, the appellant had penile/vaginal sex with AL. She bled and experienced pain. The appellant used a condom. AL did not freely and voluntarily consent to having sex with the appellant. She was under his undue influence at the time.
The trial judge said that the appellant's motivation at all times was cynical and self‑interested. The appellant knew that he was exploiting and taking advantage of a vulnerable young woman. He knew that she would and had become increasingly dependent upon him. He knew that she was unable to resist his overtures and that she would be very unlikely to complain about his behaviour. The appellant knew that AL was unable to make a free and voluntary decision about consent to any of the sexual conduct of which he was convicted.
The appellant's sexual relationship with AL continued after her 18th birthday and there were multiple occasions on which he had penile/vaginal sex with her in his rooms.
His Honour reiterated that the appellant was not to be sentenced for any uncharged conduct.
AL had been admitted to Cambridge Hospital as the appellant's patient between April and November 1989, January and March 1990 and July and September 1990.
During 1990 AL's mental health deteriorated. In October 1990 she was admitted to Heathcote Hospital as a public patient. By October 1990, AL was 'a danger to herself' (ts 848). She underwent a lengthy course of electro‑convulsive therapy. She was unable to speak. There were numerous episodes of self-harm.
In early 1991, AL became the appellant's patient again, but in July 1991 she complained to the police about the appellant's sexual misconduct. However, she withdrew her witness statement. AL also complained to the Medical Board. By that time, the appellant had self‑disclosed to the Medical Board the nature of his sexual relationship with AL. The trial judge said that the self-disclosure was to the appellant's credit.
On 28 February 1992, the appellant appeared before the Medical Board and pleaded guilty to one charge of infamous conduct on the basis of his admitted sexual relationship with AL. The appellant's name was struck from the register of medical practitioners and psychiatrists. Although he has attempted, on one occasion, in 1996 to seek readmission to practice, he has never been readmitted. AL has continued to suffer from mental illness and in 2017 was admitted as an in‑patient for treatment of her psychiatric difficulties. His Honour noted that, while her illness pre‑dated the appellant's involvement with her, the appellant's abuse of AL as a patient was 'at least partly causative of the decline in her mental health in 1990 and is still a contributing factor in her on‑going psychiatric illness' (ts 848).
The trial judge recounted a number of aggravating factors in relation to the offending. First, the appellant abused the trust that AL and her parents had placed in him as her treating psychiatrist. Secondly, the appellant had engaged in a sexual relationship with AL under the guise of therapy and in the course of what were supposed to be psychiatric treatment sessions in hospital and in his rooms. Thirdly, there was a significant age disparity between the appellant and AL. When the sexual relationship began she was still a child. Fourthly, AL was very vulnerable and was dependent upon the appellant. He knew that she could not freely and voluntarily consent to the sexual acts. Fifthly, the offending contributed to AL's mental health decline in 1990. Sixthly, the offending did not involve an isolated incident. It occurred over an extended period of time.
His Honour said there was no doubt that the offending has had 'an enormous effect on [AL's] life and she still suffers from the consequences of what [the appellant] did' (ts 850).
The trial judge referred to the appellant's personal circumstances and to mitigating factors.
As at the sentencing date, the appellant was aged 70 years. His Honour had regard to the appellant's age in determining the sentencing outcome. When the offending occurred, he was married. He has three children who are adults. As a consequence of his sexual relationship with AL, the appellant was, as we have mentioned, struck off the roll of medical practitioners. He has never practised his profession again. This has caused the appellant to suffer social isolation and has reduced his income earning capacity considerably. The appellant has 'no assets … little cash reserves and almost no superannuation' (ts 850). In 1994, the appellant's marriage broke down. His offending behaviour was a major contributing factor to the breakdown. However, the appellant began a new relationship in 1996. That has been a long‑term relationship and he has remarried. The appellant's wife is in poor health and has relied on him for assistance with activities of daily living. Her position had become 'much more difficult' after the appellant was remanded in custody (ts 851 - 852). However, his Honour did not regard those circumstances as exceptional and there was no evidence that the appellant's wife was unable to be cared for by someone else.
His Honour accepted that in 1995 the appellant was estranged from his then wife and was suffering from severe depression. When he was a medical student at Monash University, he suffered serious injuries. As a result, he had 'low self‑esteem and a persistent need to be needed' (ts 850). In 1995, the appellant was treated by a psychiatrist and he responded to the treatment.
The trial judge noted that after he was deregistered as a medical practitioner, the appellant worked for some time in a newsagency and then began voluntary work in a residential aged care facility. After three years, the appellant was engaged full time and on a salaried basis by the facility. He remained employed in that capacity for 15 years until he retired in July 2016. The appellant was well regarded and liked by his co‑workers. His Honour received a number of character references. The authors of the references spoke well of the appellant.
His Honour accepted that the appellant had gained some insight as to the inappropriateness of his relationship with AL, but his Honour did not accept that the insight was complete or that he was truly remorseful. In his Honour's view, the appellant continues to minimise his offending behaviour.
The trial judge did not accept that the appellant had previously admitted the offending. He had previously admitted 'a consensual relationship with someone [he] maintained was over 18' (ts 851). That admission was contrary to the jury's verdicts and his Honour's findings of fact. However, the appellant did acknowledge that he had engaged in most of the alleged sexual behaviour.
His Honour said that the appellant's 'professional exile' had been a form of punishment (ts 852).
The police initially investigated AL's allegations on two separate occasions. On both occasions a decision was made not to proceed with any charges. Charges were not laid until after a third investigation by the police which was completed in 2016 (ts 823).
His Honour said that delay was 'an important mitigating factor' and that 'the delay in this matter coming before the courts was not your fault and it is a matter which I need to take into account in sentencing you' (ts 852).
The trial judge accepted that the appellant had been of good character since his offending against AL and that personal deterrence was not a consideration in sentencing him.
The appellant had a prior conviction for indecent assault. The offence was committed in 1985 against a 15 year old female patient. The offending occurred in the appellant's treatment rooms at the Hillview Terrace Clinic. He put his hand under the victim's skirt. Next, he put his hand under her top and underneath her bra. He touched the side of her breast. The victim thought that what the appellant was doing was part of her therapy. In 1997, the appellant was convicted of the indecent assault after a trial in the District Court. He was fined $4,000. In the present case, his Honour noted that the previous conviction did not aggravate the appellant's offending against AL. However, the appellant could not claim that his offending against AL was out of character.
Counsel for the appellant's submissions
Counsel for the appellant submitted that, having regard to all relevant facts and circumstances and all relevant sentencing factors, the total effective sentence of 5 years 2 months' imprisonment did not bear a proper relationship to the overall criminality of the appellant's conduct. Particular features of relevance included the appellant's age at the date of sentencing and 'the extraordinary delay that had occurred in circumstances in which the appellant was the subject of a total of three police investigations before he was finally charged'. It was submitted that there had been delay coupled with rehabilitation and 'the stress of prior police investigations' (appeal ts 3). Counsel acknowledged that there are no comparable cases. The present case 'stands on its own' (appeal ts 4). According to counsel, the total effective sentence was unreasonable or plainly unjust.
The merits of the ground of appeal
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia[1] (McLure JA; Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence (which is nevertheless within the 'available range' of sentences) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia[2] (Owen JA; McLure P & Pullin JA agreeing); Gaskell v The State of Western Australia[3] [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26].
[2] Giglia v The State of Western Australia [2010] WASCA 9 [39] ‑ [40].
[3] Gaskell v The State of Western Australia [2018] WASCA 8.
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 young people.
It has been observed that, in a case of penile penetration of the vagina without consent where there is a plea of not guilty, a sentence of 5 to 6 years' imprisonment is not unusual. See Singh v The State of Western Australia[4] (Buss P, Mazza JA & Beech J). However, 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. See The State of Western Australia v Akizuki[5] (Steytler P); Juma v The State of Western Australia[6] (McLure P, Newnes JA & Mazza J).
[4] Singh v The State of Western Australia [2017] WASCA 47 [52].
[5] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] - [69].
[6] Juma v The State of Western Australia [2011] WASCA 54 [37] - [38].
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.
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.
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.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia[7] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ); The State of Western Australia v Doyle[8] (Buss P, Mazza JA & Hall J).
[7] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] ‑ [39].
[8] The State of Western Australia v Doyle [2017] WASCA 207 [36].
Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance.
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen[9] (French CJ, Hayne, Kiefel & Bell JJ).
[9] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25].
In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA). Part 2 div 1 comprises s 6 to s 9AA.
By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
In the present case, the egregious nature of the appellant's offending is obvious from the facts and circumstances of his offending and the trial judge's sentencing remarks.
The appellant flagrantly misused his skill, experience and status as a child psychiatrist to sexually abuse AL. She was aged 17 in relation to all of the offences except for count 10 (which occurred when she was 18). AL needed significant therapeutic assistance. The appellant ignored his professional and ethical obligations, and exploited AL for his own purposes. The appellant knew that AL was highly vulnerable and had become increasingly dependent upon him. He also knew that she was unable to make a free and voluntary decision about consent to any of the sexual conduct of which he was convicted. Although AL's illness pre-dated the appellant's involvement with her, the appellant's abuse of AL as a patient at least partly caused the decline in her mental health in 1990 and remains a contributing factor in her ongoing psychiatric difficulties.
The appellant's prior criminal record, and any failure of the previous sentence to achieve the purpose for which it was imposed, did not, of course, aggravate the offending in question, but his record demonstrated that, when he committed the relevant offences, he was not of good character. His offending was not an aberration. It was planned, premeditated and repeated over a significant period of time.
The appellant was not youthful or inexperienced, for sentencing purposes, when he committed the offences.
It is true that there were a number of mitigating factors. His Honour referred to them in his sentencing remarks. They included that, the appellant was aged 70 when he was sentenced; the appellant's offending had (appropriately) severe consequences for him personally and professionally; the appellant acknowledged at and before the trial that he had engaged in most of the alleged sexual behaviour; there was a substantial delay in the appellant being charged with the offences (but that was caused, in part, by his failure to admit that, as he knew, AL was unable to make a free and voluntary decision about consent to any of the relevant sexual conduct); and the appellant had not reoffended after 1990.
Although the mitigating factors were in combination of importance, they were decisively outweighed by the seriousness of the objective facts and circumstances of the offending. Those objective facts and circumstances were shocking, the appellant's perversion of his power and position was appalling and the consequences of the offending for AL were destructive.
In my opinion, the total effective sentence of 5 years 2 months' imprisonment did not infringe the first limb of the totality principle. A custodial term of that length was necessary in order properly to reflect the egregious nature of the appellant's offending, viewed as a whole, and to give effect to the sentencing considerations of appropriate punishment and general deterrence, having regard to the need to protect vulnerable young people. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the maximum penalties, the seriousness of the overall offending, the vulnerability of AL and the matters of mitigation referred to by his Honour.
It is not reasonably arguable that error by the trial judge in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence of 5 years 2 months' imprisonment was not unreasonable or plainly unjust.
The sole ground of appeal is without merit.
Conclusion
The sole ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused and the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS30 OCTOBER 2018
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