Menmuir v The State of Western Australia - [2018] WASCA 13

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MENMUIR -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 13

CORAM: BUSS P
MAZZA JA
BEECH JA

HEARD: 14 SEPTEMBER 2017

DELIVERED : 8 FEBRUARY 2018

FILE NO/S: CACR 122 of 2017

BETWEEN: DEREK PAUL MENMUIR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
File No  :IND DER 9 of 2013

Catchwords:

Criminal law - Appeal against sentence - Eight counts of sexual penetration of a girl aged 14 - One count of indecent dealing with the girl - Four counts of supplying cannabis to the girl - Appellant aged 47 at the time of the offending - Offences committed over a period of at least two months - Pleas of guilty at the first reasonable opportunity - Appellant cooperated with and made significant admissions to the police - Total effective sentence of 6 years' imprisonment - Totality principle

Legislation:

Criminal Code (WA), s 321(2), s 321(4), s 321(7), s 321(8)
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(2)
Sentencing Act 1995 (WA), s 9AA

Result:

Application for an extension of time to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms N R Sinton
Respondent: Ms K C Cook

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Greenland v The State of Western Australia [2017] WASCA 83
Hill v The State of Western Australia [2014] WASCA 150
JAF v The State of Western Australia [2008] WASCA 231
Juma v The State of Western Australia [2011] WASCA 54
M v The State of Western Australia [2006] WASCA 256
PP v The State of Western Australia [2004] WASCA 144
RMS v The State of Western Australia [2010] WASCA 76
Roffey v The State of Western Australia [2007] WASCA 246
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
Walters v The State of Western Australia [2018] WASCA 3
Wimbridge v The State of Western Australia [2009] WASCA 196
Woods v The Queen (1994) 14 WAR 341

JUDGMENT OF THE COURT: The appellant has applied for an extension of time to appeal and for leave to appeal against sentence.
On 24 February 2014, the appellant was convicted, on his pleas of guilty in the District Court before Stone DCJ, of 13 counts. Nine of the counts (namely, counts 1, 3, 4, 6, 7, 8, 10, 11 and 12) concerned sex offences against a girl, K. The other four counts (namely, counts 2, 5, 9 and 13) concerned the supply of cannabis to K, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
The sex offences against K occurred on unknown dates between 31 March 2013 and 1 August 2013. Count 1 involved the appellant indecently dealing with K by touching her breasts, contrary to s 321(4) of the Criminal Code (WA) (the Code). Counts 3, 6 and 10 involved the appellant sexually penetrating K by engaging in cunnilingus, contrary to s 321(2) of the Code. Counts 4, 7 and 12 involved the appellant sexually penetrating K by introducing his penis into her mouth, contrary to s 321(2) of the Code. Count 8 involved the appellant sexually penetrating K by penetrating her vagina with his penis, contrary to s 321(2) of the Code. Count 11 involved the appellant sexually penetrating K by penetrating her vagina with his finger, contrary to s 321(2) of the Code.
The cannabis offences involving K also occurred on unknown dates between 31 March 2013 and 1 August 2013.
The maximum penalty for:
(a)each offence against s 321(2) of the Code was 14 years' imprisonment (s 321(7)(a) of the Code);
(b)the offence against s 321(4) of the Code was 7 years' imprisonment (s 321(8)(a) of the Code); and
(c)each offence against s 6(1)(c) of the MD Act was 10 years' imprisonment or a fine of $20,000 or both (s 34(2) of the MD Act).
On 24 February 2014, the sentencing judge imposed individual sentences of immediate imprisonment as follows:
(a)count 1:     12 months;
(b)count 2:     12 months;
(c)count 3:     2 years;
(d)count 4:     2 years;
(e)count 5:     12 months;
(f)count 6:     2 years;
(g)count 7:     2 years;
(h)count 8:     2 years;
(i)count 9:     12 months;
(j)count 10:    2 years;
(k)count 11:    2 years;
(l)count 12:    2 years; and
(m)count 13:    12 months.
His Honour ordered that the sentences for counts 8, 9 and 12 be served cumulatively upon each other and cumulatively upon count 1, and that the other sentences be served concurrently with each other and concurrently with the accumulated sentences. The total effective sentence was therefore 6 years' imprisonment. A parole eligibility order was made.

The application for an extension of time to appeal

The appellant filed and served his appeal notice on 6 June 2017. The last date for appealing was 17 March 2014. The appellant has filed and served an affidavit sworn by him on 1 June 2017 in support of his application for an extension of time.
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia.[1]
[1] Wimbridge v The State of Western Australia [2009] WASCA 196.
We will consider the merits of the ground of appeal before deciding whether an extension of time should be granted.

The facts and circumstances of the offending

All of the offences related to K. At the time of the offending K was aged 14 and the appellant was aged 47.
As to counts 1 and 2, during April or May 2013 K went to the appellant's home in a town in rural Western Australia. She intended to obtain cannabis from him. After entering the appellant's home, K agreed with the appellant that he would give her about 1.5 g of cannabis in exchange for her exposing her breasts and permitting him to touch them. K lifted her top, exposed her breasts and the appellant touched her nipples for about one to two minutes. The appellant gave K the cannabis, as agreed, and she left his home.
As to counts 3, 4 and 5, about one week later K returned to the appellant's home. She intended to obtain cannabis from him. After entering the appellant's home, K agreed with the appellant that he would give her about 1.5 g of cannabis in exchange for her performing oral sex on him and her permitting him to perform oral sex on her. They engaged in those sexual acts for about five minutes. The appellant gave K the cannabis, as agreed, and she left his home.
As to counts 6, 7, 8 and 9, about one week later K returned again to the appellant's home. She intended to obtain cannabis from him. After entering the appellant's home, K agreed with the appellant that he would give her about 1.5 g of cannabis and $50 cash in exchange for her permitting him to have sex with her. K performed oral sex on the appellant and she permitted him to perform oral sex on her. The appellant then penetrated K's vagina with his penis for about five minutes. He wore a condom. The appellant gave K the cannabis and the $50 cash, as agreed, and she left his home.
As to counts 10, 11, 12 and 13, in July 2013, K went to the appellant's home again with the intention of obtaining cannabis from him. After entering the appellant's home, K agreed with the appellant that he would give her about 1.5 g of cannabis in exchange for sex. The appellant performed oral sex on K. Next, he inserted a finger into her vagina. K then performed oral sex on the appellant. The appellant gave K the cannabis, as agreed, and she left his home.

The police investigation and the appellant's electronically recorded interviews with police

In May 2013, the appellant's offending in relation to K was revealed in the course of a police investigation of allegations that the appellant had supplied cannabis to girls in the community where he lived in exchange for sexual favours.
On 10 or 11 May 2013, immediately after she had left the appellant's home, K informed her friend, a child named TMCB, that she had just performed oral sex on the appellant in exchange for cannabis. Later, TMCB repeated that information to her legal guardian, JKB.
On 21 May 2013, an adult, Ms E, informed police of her concern that the appellant was supplying cannabis to young girls, possibly including her own 12‑year‑old daughter, in exchange for the girls performing sexual acts. Police officers then obtained statements from TMCB and others. This resulted in the police becoming aware of the appellant allegedly (at that stage) having offended sexually against K.
The State brief included a statement dated 21 May 2013 by TMCB and a statement dated 21 May 2013 by JKB.
On 2 August 2013, police executed a search warrant at the appellant's home.
On 7 August 2013, the appellant was arrested. On that date he participated in an electronically recorded interview (the appellant's first police interview) with police. Initially, the appellant denied repeatedly that he had supplied cannabis to young girls in exchange for sexual favours (14 ‑ 16, 18 ‑ 19, 24). Ultimately, however, he mentioned K's name and admitted having 'sexually penetrated' her in exchange for the supply of cannabis (35). The police officers then questioned the appellant about K. He stated that 'she said she was 16', but then admitted that he thought she was '[a]bout 15 or 16' (38). The appellant asserted that he had met with K on two occasions and that he had engaged in sexual activity with her on only one of them (45, 48). He claimed that K had approached him with the idea of exchanging sex for cannabis (43 ‑ 44). He said 'I feel like I am the victim here' (34).
On 8 August 2013, police interviewed K. She described having had sexual intercourse with the appellant. She also said that on the first occasion (counts 1 and 2) the appellant had said 'show me your boobs … and I'll give you half a sachet or a full sachet [of cannabis]' (16). As to the subsequent occasions, K disclosed that she had performed oral sex on the appellant (13 ‑ 17). However, she did not disclose that the appellant had performed oral sex on her. K had great difficulty in discussing the offending. She described it repeatedly as 'shame' (4, 6).
On 9 August 2013, the appellant participated in another electronically recorded interview (the appellant's second police interview) with police. The police officers asked whether he had engaged in any sexual activity with K before the occasion when he had sexual intercourse with her. The appellant then made full and detailed admissions about each of the four occasions on which he had engaged in sexual activity with K in exchange for supplying her with cannabis and, on one occasion, with $50 cash. He mentioned that K had gone to his home from time to time, in addition to the four occasions the subject of the charged offences, and had purchased cannabis from him for cash without engaging in any sexual activity (65). The appellant admitted that the offending ceased as a result of K moving for some time to another town in rural Western Australia (10). However, the fourth occasion (counts 10, 11, 12 and 13) occurred when K returned for a few days to the rural town where the appellant lived (47, 58 ‑ 59).

The sentencing judge's sentencing remarks

The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.
His Honour noted a number of aggravating features of the offending. First, the age disparity between the appellant and K was of importance because he was 'in a position of power and in a position to influence how the child behaved' (ts 15). Secondly, the appellant corrupted K by offering her cannabis and money in exchange for sexual favours (ts 15). Thirdly, the period of the offending showed 'a level of persistence' (ts 15). Fourthly, there was an element of grooming. The offending escalated in seriousness 'in terms of the sexual activity and reward' (ts 16). Fifthly, K was vulnerable. She wanted cannabis and the appellant exploited the situation to his advantage (ts 16).
The sentencing judge had not received a victim impact statement from K. However, his Honour did read the transcript of K's visually recorded interview (ts 16). K felt shame and embarrassment as a result of her interaction with the appellant and she was reluctant to discuss how the offending had affected her.
His Honour noted the appellant's personal circumstances. He was aged 47 (nearly 48) at the time of sentencing. He was single and a disability pensioner. He had a son aged 18 and a daughter aged 20.
The appellant left school in year 10. He completed an apprenticeship as an electrician. Alcohol and illicit drugs affected his employment. He has been a disability pensioner for many years.
The material before his Honour included a psychiatric report and a pre‑sentence report. The appellant has a history of mental health problems. He has suffered from bipolar affective disorder for a number of years. However, the offending was not related to the appellant's mental health. Rather, it was related to his alcohol and cannabis intoxication for the purpose of alleviating loneliness.
The psychiatrist, Dr Siva Bala, said in his report dated 30 November 2013:
(a)The appellant had a tendency to minimise his own responsibility for the offending and to blame others for his behaviour; for example, he tended to normalise sexual behaviour by young women from socially deprived backgrounds (8). The appellant told Dr Bala that he was 'a sitting duck' in relation to the offending (2). He was 'all alone sitting at home … mainly drinking and smoking a bit … wanted a bit of company and used to let people in and not think of the consequences' (2).
(b)The appellant was at 'an elevated risk of further offending, given that he cannot successfully address his substance use issues, adopt mature coping mechanisms or assume normal adult responsibilities' (7 ‑ 8).
The appellant has a prior criminal record. In particular, he has many previous convictions including for violence, breach of a restraining order, disorderly behaviour in public, damaging property, supplying cannabis and traffic offences. The appellant has served terms of imprisonment for some of the previous offences. However, he has not previously been convicted of any sexual offences.
His Honour noted a number of mitigating factors. First, the appellant had pleaded guilty at the first reasonable opportunity. His Honour allowed a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA) (ts 17, 20). Secondly, the appellant had cooperated with the police. He had provided K's name to the police and had made significant voluntary disclosures and admissions (ts 17 ‑ 18, 20). Thirdly, despite Dr Bala's observations, the appellant had 'some insight' into his offending behaviour, was 'genuinely remorseful' and had 'victim empathy' (ts 19 ‑ 20). Fourthly, the appellant had mental health problems (ts 17, 20).

The ground of appeal

The ground of appeal alleges that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle.

The appellant's submissions

Counsel for the appellant submitted that the total effective sentence was disproportionate having regard to the facts and circumstances of the offending, the appellant's pleas of guilty at the first reasonable opportunity, his 'significant voluntary disclosure of guilt', his 'deep remorse' for his offending and the sentencing patterns revealed by the decisions of this court in Greenland v The State of Western Australia,[2] Tapper v The State of Western Australia[3] and JAF v The State of Western Australia.[4]
[2] Greenland v The State of Western Australia [2017] WASCA 83.
[3] Tapper v The State of Western Australia [2016] WASCA 140.
[4] JAF v The State of Western Australia [2008] WASCA 231.

A material error in the basis on which the appellant was sentenced

At the sentencing hearing, the prosecutor mistakenly informed the sentencing judge that K's status as a victim was unknown to the police at the time of the first police interview and that, as a result of the appellant's admissions, the police became aware of K's status as a victim (ts 12 ‑ 13). The prosecutor's error was favourable to the appellant and enhanced the weight which his Honour gave to the disclosure as a mitigating factor (ts 15).
At the hearing of the appeal, counsel for the appellant accepted that, before the appellant's first police interview, K's name had been provided to the police by TMCB and JKB. However, counsel submitted that the admissions in the appellant's first police interview were significant because:
(a)the admissions were the catalyst for the police interviewing K; and
(b)some of the counts in the indictment were not supported by K's disclosures during her interview (appeal ts 8 ‑ 10).
We will deal with the ground of appeal on the basis of the correct facts as agreed between counsel for the appellant and counsel for the State at the hearing of the appeal.
We accept that the admissions in the appellant's first police interview were significant because of the matters referred to by counsel for the appellant in her submissions.

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[5] (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[6] (Owen JA; McLure P & Pullin JA agreeing); Gaskell v The State of Western Australia[7] [52] ‑ [60] (Buss P), [150] ‑ [151] (Mazza & Beech JJA).
[5] Roffey v The State of Western Australia [2007] WASCA 246 [26].
[6] Giglia v The State of Western Australia [2010] WASCA 9 [39] ‑ [40].
[7] 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 children. See Woods v The Queen[8] (Anderson J; Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia[9] (McLure J; Malcolm CJ & Murray J agreeing); M v The State of Western Australia[10] (Wheeler JA; Steytler P & McLure JA agreeing).
[8] Woods v The Queen (1994) 14 WAR 341, 345 - 346.
[9] PP v The State of Western Australia [2004] WASCA 144 [14].
[10] M v The State of Western Australia [2006] WASCA 256 [30].
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[11] (Steytler P); Juma v The State of Western Australia[12] (McLure P, Newnes JA & Mazza J).
[11] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] - [69].
[12] Juma v The State of Western Australia [2011] WASCA 54 [37] - [38].

When a conviction follows upon a plea of guilty that is the result of a voluntary disclosure of guilt by the offender of an offence which was otherwise unlikely to come to light, that is ordinarily a significant matter to the credit of the offender to be taken into account in the sentencing process. How significant it is in the sentencing process depends upon the facts and circumstances of the particular case. See RMS v The State of Western Australia[13] (McLure P, Owen & Newnes JJA); Hill v The State of Western Australia[14] (Buss, Newnes & Mazza JJA).
[13] RMS v The State of Western Australia [2010] WASCA 76 [19] ‑ [20].
[14] Hill v The State of Western Australia [2014] WASCA 150 [33].
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.
The facts and circumstances of Greenland, Tapper and JAF are distinguishable in significant respects from the facts and circumstances of the present case.
In Greenland, the offender's appeal to this court against a total effective sentence of 5 years 6 months' imprisonment was dismissed. At the time of the offending the offender was aged 21 and the victim was aged 15. The offending occurred on two occasions over successive days and involved three counts of sexual penetration of a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code, and one count of attempted sexual penetration of a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) read with s 552 of the Code. In the present case, the offending occurred on four occasions over a period of at least two months and involved eight counts of sexual penetration, one count of indecent dealing and four counts of supplying cannabis. It is true that in Greenland the offender was given only a 5% discount for his pleas of guilty and was sentenced on the basis that the sexual penetrations were non‑consensual and involved some violence. However, in the present case, the offending involved not only twice the number of counts of sexual penetration and also one count of indecent dealing and four counts of supplying cannabis, but the grooming, corruption and exploitation of a young girl whom the appellant had persuaded to prostitute herself in exchange for a prohibited drug. In Greenland, the offender was youthful at the time of the offending, had no criminal record, was of prior good character and at a low risk of reoffending. In the present case, the appellant was not youthful, had a criminal record, was not of prior good character and was at an elevated risk of further offending generally. However, the appellant pleaded guilty at the first reasonable opportunity (for which he received a 25% discount) and he made significant voluntary disclosures and admissions. In any event, the very significant differences between the offences and the offender in Greenland and the offences and the appellant in the present case make Greenland of very limited assistance as a comparator.
In Tapper, the offender was convicted, on his very late pleas of guilty, of three counts of sexual penetration, contrary to s 321(2) of the Code. On each occasion the offender sexually penetrated the victim by penetrating her vagina with his penis. The offender received a 10% discount for his pleas of guilty. He was sentenced to 2 years' immediate imprisonment on each count. The terms of imprisonment were ordered to be served concurrently. The offender's appeal on the ground that the sentences were manifestly excessive in type and length was dismissed. At the time of the offending the appellant was aged 43 and the victim was aged 15. The offender was 'wilfully blind' as to the victim's age. The victim was a willing participant in the sexual activity. The significant grooming, corruption and exploitation which occurred in the present case was absent in Tapper. The offender in Tapper, unlike the appellant in the present case, did not have a criminal record, was of prior good character and was not at a significant risk of reoffending. However, the appellant in the present case had the mitigation of pleas of guilty at the first reasonable opportunity and significant voluntary disclosures and admissions. In any event, this court's dismissal of the appeal in Tapper did not fix the limits of the available sentencing range in that case or generally.
In JAF, the offender was convicted, on his early pleas of guilty, of 12 counts of indecently dealing with a child aged between 13 and 16 years, contrary to s 321(4) of the Code, and 21 counts of sexually penetrating a child aged between 13 and 16 years, contrary to s 321(2) of the Code. The offences were committed in circumstances of aggravation in that the victim was under the care, supervision or authority of the offender. Consequently, the maximum penalty for each indecent dealing offence was 10 years' imprisonment and the maximum penalty for each sexual penetration offence was 20 years' imprisonment. At the time of the offending the victim was a school girl aged between 14 and 15 years and the offender was a teacher at her school (although not her class teacher) aged 34. The offending occurred over a period of about four months. The victim was a willing participant in what occurred. It appears the offender and the victim liked each other and, gradually, an emotional relationship developed between them. There were a number of mitigating features, both personal to the offender and arising from the circumstances of the case. The offender's appeal against, relevantly, a total effective sentence of 5 years 8 months' imprisonment was allowed. A sentence of 4 years' immediate imprisonment was substituted. Although the offending in JAF involved a circumstance of aggravation and, therefore, higher maximum penalties than in the present case, a number of significant aggravating factors in the present case were absent in JAF. Also, the offender in JAF, unlike the appellant in the present case, did not have a criminal record, was of prior good character and at low risk of reoffending. However, the appellant in the present case had the mitigation of significant voluntary disclosures and admissions. The facts and circumstances of the recent decision of this court in Walters v The State of Western Australia[15] are more comparable with the facts and circumstances of the present case.
[15] Walters v The State of Western Australia [2018] WASCA 3.
In Walters, the offender was convicted, on his pleas of guilty, of two offences contrary to s 321(2) of the Code. Each offence occurred on a date unknown between 11 June 1998 and about 7 January 2000. Count 1 alleged that the offender had sexually penetrated the victim by penetrating her vagina. Count 2 alleged that the offender had sexually penetrated the victim by penetrating her vagina with his penis. There was a significant delay in the offender being charged with the offences. He was not convicted until 13 February 2017 when he was aged 86. At the time of the offending the victim was aged between 13 and 14 years and the offender was aged almost 70 years.
On a number of occasions between 11 June 1998 and about 7 January 2000 the victim went to the offender's home where she engaged in sexual activity with the offender in exchange for money. The offences were committed against the background that the offender had, on other occasions, paid the victim for sexual favours. In other words, the offences were not isolated or out of character.
As to count 1, the State alleged initially that the offender had inserted a rubber dildo into the victim's vagina. Ultimately, the offender was sentenced on the basis that count 1 involved penile penetration of the victim's vagina. As to count 2, the offender engaged in unprotected sexual intercourse with the victim to ejaculation. About nine months later the victim gave birth to a son. At the time she was aged 15 years. A DNA test in 2014 confirmed that the offender was the father of the child.
The offender had a criminal record. The most serious offence occurred in 1993. It involved cattle stealing and he was sentenced to 2 years' immediate imprisonment. However, he had no record of having committed sexual offences.
The mitigating factors in Walters were the offender's pleas of guilty (for which he received a discount of 25% under s 9AA of the Sentencing Act); the offender's advanced age and state of health (although his health conditions were typical for his age, did not appear to be immediately life threatening and there was no evidence that the conditions could not be treated properly in prison or would make his incarceration more onerous); the absence of prior sexual offending; and admissions made by the offender to the police.
The aggravating factors in Walters were the victim's youth and vulnerability; the offender's exploitation of the victim having regard to his payment of money to her in return for sexual services; the offending having occurred on more than one occasion; as to count 2, the offender having engaged in unprotected sexual intercourse with the victim and her consequential pregnancy and childbirth; the very considerable age difference between the offender and the victim; and the adverse impact of the offending, especially count 2, on the victim.
This court held that the offender's offending was so serious that it would be inappropriate to interfere with his total effective sentence of 4 years 6 months' immediate imprisonment, despite the offender's advanced age and the possibility that he might die in prison or that, upon release, he may have no prospects of enjoying some useful life. The offender's appeal was dismissed.
In our opinion, the facts and circumstances of the offending in the present case, viewed as a whole, were more serious than the facts and circumstances of the offending in Walters, viewed as a whole. It is true that the victim's pregnancy and childbirth in Walters was a significant aggravating factor that was absent in the present case. However, the offender in Walters was convicted of two counts of sexual penetration whereas the appellant in the present case was convicted of eight counts of sexual penetration, one count of indecent dealing and four counts of supplying cannabis. The appellant's prostitution of the victim in the present case did not involve merely the payment of money (on one occasion), but the regular and persistent supply of a prohibited drug. The personal circumstances and antecedents of the offender in Walters and the appellant in the present case were similar, but the offender in Walters was of an advanced age (86 years) when convicted and sentenced whereas the appellant in the present case was only 47 years when convicted and sentenced. Unlike the offender in Walters, the appellant in the present case does not suffer from ill health and he has good prospects of a useful life upon release from custody.
In the present case, the appellant's offending was very serious. His offending was not momentary or impulsive. It was sustained and repetitive. The appellant groomed, corrupted and exploited K for his sexual gratification. An especially egregious aspect of his offending was the appellant's persuasion of K to prostitute herself in exchange for a prohibited drug. K was vulnerable and was adversely affected, to a significant extent, by the offending. Although there were some mitigating factors (especially the pleas of guilty and the significant voluntary disclosures and admissions), the appellant was not youthful, had a criminal record, was not of prior good character and was at an elevated risk of further offending generally.
After taking into account:
(a)the maximum penalties for the offences;
(b)the serious nature of the overall offending;
(c)the objective facts and circumstances of the overall offending;
(d)the appellant's personal circumstances and antecedents;
(e)the general sentencing patterns for offending of this kind;
(f)all aggravating factors;
(g)all mitigating factors; and
(h)all other relevant sentencing principles,
we are satisfied that, although the total effective sentence of 6 years' imprisonment was high, it was nevertheless within the range open to his Honour on a proper exercise of his discretion. In our opinion, the total effective sentence was commensurate with the overall seriousness of the offending. The proper exercise of the sentencing discretion required his Honour to accumulate some of the individual sentences, in the manner he did, in order properly to mark the very serious nature of the appellant's overall offending and to reflect the primary sentencing considerations of appropriate punishment and personal and general deterrence, having regard to the need to protect vulnerable children. Error by his Honour should not be implied or inferred, based on the first limb of the totality principle, from the sentencing outcome.
The ground of appeal has not been made out.

Conclusion

In our opinion, the appellant has not explained satisfactorily the whole of his delay in filing and serving the appeal notice. As we have mentioned, the ground of appeal has not been made out. In all the circumstances, we would dismiss the application for an extension of time to appeal and refuse leave to appeal. The appeal must be dismissed.