MHE v The State of Western Australia
[2019] WASCA 133
•29 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MHE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 133
CORAM: QUINLAN CJ
MITCHELL JA
BEECH JA
HEARD: 5 AUGUST 2019
DELIVERED : 29 AUGUST 2019
FILE NO/S: CACR 181 of 2018
BETWEEN: MHE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: O'NEAL DCJ
File Number : IND 565 of 2017
Catchwords:
Criminal law and sentencing - Sexual offending against offender's three de facto children - Offences of sexual penetration and indecent dealing on 14 separate days over a period spanning approximately a year - Early pleas of guilty - Whether sentence of 18 months' imprisonment imposed on each of two individual counts of indecent dealing manifestly excessive - Whether total effective sentence of 12 years 6 months' imprisonment infringes the first limb of the totality principle
Legislation:
Criminal Code (WA), s 329
Result:
Appeal upheld
Appellant resentenced to total effective sentence of 10 years' imprisonmentCategory: D
Representation:
Counsel:
Appellant : M R Barone SC Respondent : K C Cook Solicitors:
Appellant : Holborn Lenhoff Massey Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s):
AIM v The State of Western Australia [2014] WASCA 155
ARK v The State of Western Australia [2014] WASCA 45
B v The Queen [2002] WASCA 236
Burnes v The State of Western Australia [2017] WASCA 77
CJF v The State of Western Australia [2012] WASCA 69
ERA v The State of Western Australia [2013] WASCA 163
EXF v The State of Western Australia [2015] WASCA 118
Gaskell v The State of Western Australia [2018] WASCA 8
GHK v The State of Western Australia [2014] WASCA 19
Giglia v The State of Western Australia [2010] WASCA 9
GMS v The State of Western Australia [2009] WASCA 107
JJR v The State of Western Australia [2018] WASCA 51
KSN v The State of Western Australia [2017] WASCA 156
Law v The Queen [2019] WASCA 81
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
LYN v The State of Western Australia [2019] WASCA 45
MAS v The State of Western Australia [2012] WASCA 36
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
MMC v The State of Western Australia [2012] WASCA 187
PDT v The State of Western Australia [2012] WASCA 134
R v Irvine [2016] SASCFC 104; (2016) 126 SASR 146
R v Tyler [2016] SASCFC 7; (2016) 124 SASR 412
RGT v The State of Western Australia [2017] WASCA 120
Sathitpittayayudh v The State of Western Australia [2015] WASCA 152
SCN v The State of Western Australia [2017] WASCA 138
SG v The State of Western Australia [2013] WASCA 236
SGT v The State of Western Australia [2017] WASCA 136
The State of Western Australia v BKJ [2018] WASCA 136
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v Prince [2011] WASCA 22
The State of Western Australia v Shephard [2018] WASCA 140
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
YDN v The State of Western Australia [2018] WASCA 62
QUINLAN CJ:
1I have had the benefit of reading in draft the reasons of Mitchell and Beech JJA. I agree entirely with their Honour's reasons for concluding that this appeal should be allowed and that the appellant should be resentenced to a total effective sentence of 10 years imprisonment. I also agree with the consequential orders that their Honours propose.
2I wish to add a few brief observations of my own.
3As with many discretionary decisions, the sentencing of an offender for sexual offences against children is a difficult exercise. All such offending is inherently serious and engenders moral revulsion.
4It may seem strange to some, in those circumstances, for the court to embark on a process of placing a particular offender's conduct within a scale of severity of such conduct generally, all of which is deplorable. But that is what the law requires the court to do, both at first instance and, where necessary, on appeal. The court's duty, in that regard, requires a careful consideration of all relevant sentencing principles, together with whatever guidance may be afforded by consideration of comparable cases.
5As the reasons of Mitchell and Beech JJA demonstrate, notwithstanding the seriousness and gravity of the appellant's offending, in all of the circumstances it must be concluded that the total effective sentence imposed by the learned sentencing judge in the present case was unreasonable or plainly unjust.
6Of particular significance in the present case was the appellant's early pleas of guilty. As this Court recently observed in LYN v The State of Western Australia,[1] the public interest in avoiding the risk of further trauma and psychological harm to the victims of sexual offending against children is of such significance as to justify substantial discounts for pleas of guilty in cases where that occurs.
[1] LYN v The State of Western Australia [2019] WASCA 45 [51].
7None of which is to suggest that a plea of guilty reduces the inherent seriousness of the offending behaviour itself. Even in the case of a plea of guilty, the gravity of the conduct may be such that a significant term of imprisonment will be the only sentence that is appropriate. That, indeed, is the position in the present case, in which
the appropriate total effective sentence is one of 10 years imprisonment. For the reasons given by Mitchell and Beech JJA, that total effective sentence gives appropriate weight to all of the relevant sentencing considerations, including the appellant's pleas of guilty.
MITCHELL & BEECH JJA:
Introduction
8On 19 April 2018, the appellant was convicted, on his pleas of guilty, of 87 offences involving sexual offending against his three de facto children. His offences comprised 21 offences of sexually penetrating a child who he knew was his de facto child and 66 offences of indecently dealing with a child who he knew was his de facto child, contrary to s 329 of the Criminal Code (WA).
9On 30 August 2018, the appellant was sentenced to a total effective sentence of 12 years 6 months' imprisonment. He was made eligible for parole and his sentence was backdated to 14 February 2017 to take account of time spent in custody.
10The appellant appeals his sentence on two grounds. The first ground alleges that the individual sentences imposed in respect of counts 58 and 59 are manifestly excessive. The second ground alleges that the total effective sentence infringes the first limb of the totality principle.
11For the reasons that follow, we would uphold both grounds of appeal and resentence the appellant on all counts so as to produce a total effective sentence of 10 years' imprisonment.
Facts of offending
12The facts of the offending were not in dispute.[2] The sentencing judge incorporated into his sentencing remarks the facts of the offending as read by the prosecutor.[3]
[2] ts 27, 43.
[3] ts 79.
13The appellant's offending occurred on 14 separate days over the period between 1 January 2016 and 12 February 2017, all but three of the offences occurring in the last six months of that period. At all relevant times, the appellant was the de facto partner of the victims'
mother, MG, and had been living with the family for some time before the period of the offending.
14At the time of the offending, MG's daughter, S, was 15 years old, her daughter, K, was 11 years old and her son, L, was 8 years old. Of the appellant's 87 offences, three were committed against S, 83 against K and one against L.
15The appellant was charged on a joint indictment with MG. MG was charged with, and convicted of, four offences of indecently dealing with,[4] and one offence of encouraging to do an indecent act,[5] a child under 16 who she knew was her lineal relative. The victims of MG's offences were K and L.
[4] Counts 26, 56, 57, 60.
[5] Count 28.
Between 1 January 2016 and 14 September 2016
16On an unknown date, the appellant and S were watching TV in the lounge room of the family home, where all of the offences occurred. The appellant began to stroke S's thigh before moving his hand down and rubbing S's buttock on the outside of her trousers (count 1, indecent dealing).[6]
[6] ts 16.
17On another unknown date, the appellant and S were again watching TV in the lounge room. The appellant was sitting on the couch and S was laying on her stomach with her head on the appellant's thigh. The appellant began to stroke S's back with his hand before moving it down to stroke her buttock (count 2, indecent dealing). He then put his hand into S's underwear and pushed his hand onto her vagina. He inserted his finger into S's vagina and masturbated her for approximately 15 minutes (count 3, sexual penetration). The appellant then stopped and S went to her bedroom.[7]
[7] ts 16.
Between 28 August 2016 and 4 February 2017
18On an unknown date, the appellant was asleep on the couch in the lounge room. K was sitting up and the appellant woke to her masturbating his erect penis with her hand. He allowed her to continue for approximately five minutes until his penis started to go soft (count 4, indecent dealing). K then stopped masturbating the appellant and went to her bedroom.[8]
[8] ts 17.
19On another unknown date, the appellant and K were sitting on the couch in the lounge room watching TV; K was cuddled into the appellant's side. She slid his shorts up and started to masturbate his penis until it became erect (count 5, indecent dealing). After masturbating the appellant, K inserted the appellant's erect penis into her mouth and performed fellatio for a couple of minutes (count 6, sexual penetration). K then masturbated him again with her hand until he ejaculated (count 7, indecent dealing). After he ejaculated, the appellant told K to wash her hands; K complied and went to her room.[9]
[9] ts 17.
20On another unknown date, the appellant and K were sitting on the couch in the lounge room watching TV. K slid the appellant's shorts up and masturbated his penis with her hand, causing it to become erect (count 8, indecent dealing). The appellant placed his hand inside K's underwear and rubbed her vagina, including her clitoris (count 9, sexual penetration). The appellant stopped rubbing K's clitoris when his penis started to go soft. K then got up and went to her bedroom.[10]
[10] ts 17.
Between 28 August 2016 and 10 February 2017
21On an unknown date, the appellant and K were sitting on the couch in the lounge room watching TV. K slid the appellant's shorts up and masturbated his penis with her hand, causing it to become erect (count 10, indecent dealing). The appellant rubbed K's vagina on the outside of her leggings (count 11, indecent dealing). K lifted up her leggings and underwear and the appellant put his hand inside K's underwear. He rubbed her clitoris for a few minutes until K closed her legs and the appellant withdrew his hand (count 12, sexual penetration). K then got up and went to her bedroom.[11]
[11] ts 17 - 18.
22On another unknown date, the appellant was sitting with one leg on the couch and the other on the floor in the lounge room watching TV. K came in and lay between the appellant's legs. She slid the appellant's shorts up and masturbated his penis until he ejaculated (count 13, indecent dealing). K asked, 'Did you enjoy it?' The appellant replied, 'Yes, I did.' The appellant then told K to go and wash her hands.[12]
[12] ts 18.
23On 13 February 2017, police executed a search warrant at the family's residence and seized the hard drive from the CCTV system the appellant and MG had set up in their lounge room. On 14 February 2017, the appellant made admissions to the offending described in counts 1 to 13 above. The CCTV hard drive was subsequently examined and was found to have recorded the following additional incidents.[13]
[13] ts 18.
5 February 2017
24At approximately 8.20 pm, the appellant and MG were sitting in the lounge room watching TV. K was sitting in front of the appellant, who grabbed K's buttocks, attempted to give her a wedgie and poked her anus with his finger (count 14, indecent dealing). K then lay down on the appellant and the appellant started to tickle her on the stomach and genital area (count 15, indecent dealing). The appellant tapped K on the buttock and repeatedly attempted to poke her anus with his fingers (count 16, indecent dealing). The appellant then tickled K's inner thigh and genital area, rubbing her vagina several times (count 17, indecent dealing). He tickled K's breast area a number of times (count 18, indecent dealing) and her genital area (count 19, indecent dealing), following which K left the lounge room.[14]
[14] ts 18 - 19.
25At approximately 9.50 pm, K returned to the lounge room. MG had left, but the appellant remained on the couch watching TV. K stood near the appellant and the appellant poked K's buttock and anus area with his fingers simultaneously (count 20, indecent dealing). K sat down on a chair next to the appellant, who proceeded to rub K's inner thigh and genital area for approximately five minutes (count 21, indecent dealing). K then stood up and the appellant grabbed her buttock with his hand (count 22, indecent dealing).[15]
[15] ts 19.
6 February 2017
26At approximately 10.00 pm, the appellant and K were sitting in the lounge room, the appellant on the lounge and K on a nearby chair. The appellant rubbed K's inner thigh and genital area for approximately four minutes (count 23, indecent dealing) before K stood up and they kissed on the lips. The appellant then rubbed K's buttock (count 24, indecent dealing). K proceeded to rub the appellant's genital area (count 25, indecent dealing) before they again kissed on the lips and K left the room.[16]
[16] ts 19 - 20.
7 February 2017
27At approximately 8.15 pm, the appellant, MG and K were sitting in the lounge room watching TV. MG began rubbing the appellant's genital area in K's presence, which the appellant permitted (count 27, indecent dealing). The appellant then exposed his penis to MG within sight of K. K did not initially see his penis, but MG drew K's attention to it. K then touched the appellant's penis in the presence of MG (count 29, indecent dealing).[17]
[17] ts 20.
28A short time later, the appellant and MG were sitting in the lounge room while K was laying on the floor. MG left the room and K walked over to the appellant and rubbed his genital area (count 30, indecent dealing) before leaving the room. The appellant began rubbing his genital area. A short time later, K returned to the lounge room wrapped in a towel. Knowing that K was present, the appellant continued to rub his genital area in her presence (count 31, indecent dealing). K then walked over to the appellant and stood next to him. She opened her towel and stood naked next to the appellant and he proceeded to rub her genital area with one hand while still rubbing his genital area with the other hand (count 32, indecent dealing).[18]
[18] ts 20.
29At approximately 9.00 pm, the appellant, K and K's grandmother were sitting in the lounge room. A short time later, K's grandmother left the room. K rubbed the appellant's genital area whilst the appellant rubbed K's buttock (count 33, indecent dealing). The appellant and K kissed passionately on the mouth, twice (count 34, indecent dealing). K rubbed the appellant's genital area with her hand (count 35, indecent dealing) and they again kissed passionately on the mouth (count 36, indecent dealing). The appellant then exposed his penis in K's presence and began to masturbate (count 37, indecent dealing) before K left the room.[19]
[19] ts 21.
30Shortly afterwards, K returned to the lounge room, where the appellant continued to masturbate himself in her presence (count 38, indecent dealing). K walked over to the appellant and began to masturbate his penis with her hand (count 39, indecent dealing). She then began to perform fellatio upon the appellant (count 40, sexual penetration). K stopped, looked up at the appellant and then placed her mouth back onto his penis and continued to perform fellatio (count 41, sexual penetration). She stopped again for a short time before continuing (count 42, sexual penetration). The appellant's penis fell out of K's mouth, so she held his penis with her hand and placed her mouth back onto his penis to continue fellatio (count 43, sexual penetration). She stopped and started fellatio another two times (counts 44 and 45, sexual penetration). K then stopped performing fellatio and started to masturbate the appellant with her hand (count 46, indecent dealing). The appellant twice pulled the hand K was using to masturbate him up to his mouth to lick it (count 47 and 48, indecent dealing). When K stopped masturbating him, the appellant started masturbating himself (count 49, indecent dealing) while K rubbed his genital area (count 50, indecent dealing). A short time later, the appellant told K to lay on her back on the couch. The appellant stood over her, continuing to masturbate until he ejaculated onto K's face (count 51, indecent dealing). He then licked his semen from her face (count 52, indecent dealing). Thereafter, the appellant sat down on the couch and continued to masturbate himself in K's presence (count 53, indecent dealing), before K stood up and left the room.[20]
[20] ts 21 - 22.
8 February 2017
31At approximately 8.00 pm, the appellant was in the lounge room watching TV. K entered the lounge room, walked over and rubbed the appellant's genital area (count 54, indecent dealing). She left the room, re-entered a short time later, and again walked over and rubbed the appellant's genital area (count 55, indecent dealing).[21]
[21] ts 22 - 23.
10 February 2017
32At approximately 9.45 pm, the appellant, MG, K and L were sitting in the lounge room watching TV. Knowing that K and L were in the room and watching, MG lifted her shirt, exposing her breasts, following which the appellant put a fork on MG's breasts and used it to tickle her (counts 58 and 59, indecent dealing).[22] The victim of count 58 was L; the victim of count 59 was K.
[22] ts 23.
33A short time later, the appellant, MG and K were sitting in the lounge room. L had left the room. The appellant started rubbing MG's breast area on top of her clothing and, then, exposed MG's breasts and continued to rub her breast area for approximately 30 minutes in K's presence (count 61, indecent dealing).[23]
[23] ts 23.
11 February 2017
34At approximately 9.15 am, the appellant and K were sitting in the lounge room. They kissed on the lips and, at the same time, the appellant rubbed K's buttocks (count 62, indecent dealing).[24]
[24] ts 23 - 24.
12 February 2017
35Counts 63 to 92 occurred over a 15 minute period beginning at approximately 9.30 pm. The appellant was sitting in the lounge room watching TV. K entered the room, walked over to the appellant and began rubbing his genital area (count 63, indecent dealing). K then slid her hand into the appellant's shorts and masturbated his penis (count 64, indecent dealing). When K stopped, the appellant continued by masturbating himself in her presence (count 65, indecent dealing), during which K rubbed his genital area (count 66, indecent dealing). K then resumed masturbating the appellant (count 67, indecent dealing). K then alternated a number of times between performing fellatio on the appellant (counts 68, 70, 72, 74, 76, 78, 80, 82, 85 and 88, sexual penetration) and masturbating him (counts 69, 71, 73, 75, 77, 79, 81, 83, 86 and 89, indecent dealing). At one stage, K stopped masturbating the appellant, licked her hand, and then continued masturbating him (count 84, indecent dealing). At another stage, whilst K was masturbating the appellant, the appellant rubbed his genital area with his hand (count 87, indecent dealing). After K stopped masturbating him, the appellant covered his penis with his shorts. However, he then began rubbing his genital area in K's presence (count 90, indecent dealing). He stopped, leant over to K, and then resumed rubbing his genital area (count 91, indecent dealing). The appellant and K then left the room together and returned a short time later. During the course of this incident, not observed by CCTV but admitted by the appellant in an interview with police, the appellant slid his hand into K's underwear and rubbed her clitoris with his finger (count 92, sexual penetration).[25]
[25] ts 24 - 26.
Personal circumstances
36The appellant was 40 years old at the time of sentence and between 38 and 39 years old at the time of his offending.[26] He was born in Western Australia and has two brothers. He described his home environment to the author of a pre-sentence report as very stable, with no issues within his immediate family. However, he and his brothers were victims of sexual abuse when they were children, committed by a neighbour and a work colleague of the appellant's father, who were both charged, convicted and punished for their offending.[27] The appellant completed year 12 and then went to Switzerland for six months to study farming. He was employed in a hobby shop in the five years before he was remanded in custody.[28]
[26] ts 81.
[27] ts 81.
[28] ts 82.
37The appellant had one long-term relationship prior to meeting MG online. He was in a relationship with MG for approximately five years prior to his offending, and it was unclear, at the time of sentence, whether he remained in that relationship.[29] The sentencing judge noted that there were character references from the appellant's father and a female friend of some years, both of whom offered their support for the appellant's rehabilitation. His Honour further noted that the reports he had received about the appellant said that the appellant was regarded as suitable for supervision in the community, based on him having no history of convictions and no history of community based orders.[30]
[29] ts 81 - 82.
[30] ts 82.
Sentencing remarks
38The sentencing judge noted that, in respect of a de facto child under 16, the maximum penalty is 10 years' imprisonment for an offence of indecent dealing, and 20 years' imprisonment for an offence of sexual penetration.[31]
[31] ts 79.
39In order to resolve a disputed factual issue in respect of one of MG's offences, the sentencing judge watched the CCTV footage of the offending the subject of the appellant's count 27.[32] His Honour observed that the CCTV footage of count 27 elucidated the reference in the statement of material facts to K being 'present': she was in close proximity to MG and the appellant, touching the appellant, so that MG's actions of groping the appellant's genital area were readily observable by her.[33]
[32] See ts 55 - 56, 79 - 80.
[33] ts 80.
40His Honour made reference to how normalised sexual behaviour of this kind apparently was in the household. The sentencing judge noted that the State did not contend that the offending on the indictment was representative of some broader pattern of uncharged conduct by either the appellant or MG.[34]
[34] ts 80.
41The sentencing judge identified the following aggravating factors:
(1)The appellant breached his position of trust, power and influence over the victims, who were his de facto children and depended on him for support, care and guidance.[35]
(2)Two of the victims, K and L, were very young.[36]
(3)The offending was so repeated, particularly against K, as to be routine in the household.[37]
(4)A number of the individual offences and the offending overall revealed an extreme degree of depravity.[38]
[35] ts 80, 84.
[36] ts 80.
[37] ts 80.
[38] ts 81.
42His Honour also referred to the effect of the offending on S, as described in her victim impact statement, which he expressed as 'her loss of trust and her sense of helplessness and incompetence and the terrible memories that invade her sleep'.[39] His Honour remarked that it was impossible to hear the description of the offending without fearing for the future of all of the victims.[40]
[39] ts 81.
[40] ts 81.
43The sentencing judge identified the following mitigating factors:
(1)The appellant pleaded guilty to the offences, for which, taking into account the nature of the offences and the timing of the pleas, the sentencing judge applied a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA).[41]
(2)After initially denying any offending to the police, the appellant made a number of admissions, in particular after the CCTV footage was seized from the house.[42]
(3)The appellant's statements to police in respect of the offending the subject of counts 1 to 13 and 92 amounted to voluntary disclosure of offences that would not otherwise have been discovered.[43] In sentencing on those counts, his Honour stated that, due to these voluntary admissions, the sentences he imposed were much lower than they would otherwise have been.[44]
(4)The appellant had good antecedents; he had a record of employment and no record of convictions.[45]
(5)The appellant expressed a willingness to undertake sex offender treatment. However, the sentencing judge observed that it would not be easy to shift the appellant's attitudes, given his thoughts and beliefs with respect to offending of this kind. His Honour observed that this was illustrated by the way the appellant appeared to shift responsibility to his 11-year-old victim, K.[46]
[41] ts 83.
[42] ts 83.
[43] ts 83.
[44] ts 87.
[45] ts 83.
[46] ts 83.
44The sentencing judge did not accept that the appellant displayed any significant remorse, referring to:
(1)the fact that, evident from the appellant's police interviews seen by his Honour, the appellant was an articulate man of some intelligence;
(2)the frequently plausible way that the appellant lied in two of his police interviews; and
(3)the appellant's efforts to shift blame to K and to maintain ties with MG.
Similarly, his Honour was not persuaded that the appellant's expressed willingness to undergo treatment was motivated by genuine remorse.[47]
[47] ts 83 - 84.
45The sentencing judge stated that the dominant sentencing considerations in offences involving the sexual abuse of children are personal and general deterrence and the protection of children, and that mitigating factors are given less weight.[48]
[48] ts 84.
46His Honour observed that a troubling question was how K became so sexualised; the appellant did not need to use any force or any threat to gain her participation, although he frequently initiated sexual behaviour.[49] His Honour further observed that some of the individual acts of indecency ranked towards the very upper end of the scale of such offences. When looked at overall, his Honour considered that the appellant's offending ranked towards the upper end of objective seriousness, particularly because there were three victims.[50]
[49] ts 84.
[50] ts 84.
47The sentencing judge considered that, in view of the seriousness of the appellant's offences, the only appropriate disposition in respect of each offence was a term of imprisonment.[51] His Honour imposed the sentences outlined in Annexure A.[52]
[51] ts 87.
[52] ts 87 - 91.
48The sentencing judge took into account that the events occurred over some 14 incidents, and that multiple charges were laid in respect of each of those incidents. His Honour stated that, in those circumstances, it would be entirely appropriate to make many of the sentences cumulative. After taking into account the totality principle, the judge ordered that the sentences imposed upon counts 3, 40, 58 and 68 be served cumulatively, thereby imposing a total effective sentence of 12 years 6 months' imprisonment.[53]
[53] ts 91.
49The sentencing judge made the appellant eligible for parole, and backdated his sentence to 14 February 2017 to take account of time spent in custody on remand.[54]
[54] ts 93.
Grounds of appeal
50The appellant appeals on two grounds. Ground 1 alleges that the sentences imposed on counts 58 and 59 are manifestly excessive. Ground 2 alleges that the total effective sentence infringes the first limb of the totality principle in that it does not bear a proper relationship with the overall criminality involved.
51Leave to appeal on both grounds has been granted.[55]
[55] Order of Buss P, 8 February 2019.
Ground 1: were the sentences on counts 58 and 59 manifestly excessive?
The appellant's submissions
52Ground 1 contends that the individual sentences of 18 months' imprisonment imposed on each of counts 58 and 59 were manifestly excessive. Those counts involve the appellant tickling MG's exposed breasts with a fork in the presence of L and K. Count 58 was the appellant's only offence against L. The sentence on count 58 was made cumulative on the other sentences, while the sentence on count 59 was made concurrent.
53The appellant submits that a viewing of the CCTV footage reveals the limited duration and criminality of the offending the subject of counts 58 and 59,[56] the effect of which is agreed between the parties and outlined at [63] below.
[56] Appellant's submissions [41].
54The appellant submits that the sentence of 18 months' imprisonment imposed on counts 58 and 59 is outside the range of sentences customarily imposed in cases of indecent dealing with a child involving similar offending. He says that sentences of such magnitude have been imposed in matters of far greater seriousness.[57]
[57] Appellant's submissions [42], referring to PDT v The State of Western Australia [2012] WASCA 134, SGT v The State of Western Australia [2017] WASCA 136 and The State of Western Australia v Shephard [2018] WASCA 140.
The State's submissions
55The State submits that where an individual sentence forms part of a larger sentencing exercise it is often artificial to look at the individual sentence in isolation.[58] It says that the artificiality of ground 1 is further demonstrated by the appellant's comparison between the sentences imposed for counts 58 and 59 and sentences imposed in other cases for individual offences of indecent dealing, particularly as the examples given are from cases in which totality considerations applied, or the single offence was an isolated and impulsive act.[59]
[58] Respondent's submissions [27] citing SGT [38].
[59] Respondent's submissions [27] - [28]. In its submission, SGT and The State of Western Australia v Shephard are in the former category, while PDT is in the latter category.
56The State submits that, in the present case, the appellant was sentenced in respect of 87 offences against three separate victims. The sentences in respect of all but four counts were made wholly concurrent (including the sentence imposed on count 59), a consideration which must be weighed in determining whether the sentences imposed for counts 58 and 59 were manifestly excessive.[60]
[60] Respondent's submissions [29].
57It submits that, in any event, a sentence of 18 months' imprisonment for each of counts 58 and 59 was appropriate to the seriousness of each offence and, while high,[61] was not plainly unjust or unreasonable;[62] the counts concerned an offence of indecent dealing in which the appellant and MG exposed both K and L, together, to sexualised conduct, involving MG exposing her breasts and the appellant tickling them with a fork.[63]
[61] Appeal ts 15, 19.
[62] Respondent's submissions [30].
[63] Respondent's submissions [30].
General principles
58The following general principles concerning appeals against sentence are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2) In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (that is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (that is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
59As to the last point, the well‑known observations of Owen JA in Giglia v The State of Western Australia[64] do not mean there is never a role for a manifest excess ground in a sentence involving multiple offences.[65] Rather, the court's assessment of the severity of an individual sentence, and therefore whether the individual sentence is manifestly excessive, is to be undertaken in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. Those matters may affect the court's assessment of whether the individual sentence is unreasonable or plainly unjust.[66]
[64] Giglia v The State of Western Australia [2010] WASCA 9 [40].
[65] Gaskell v The State of Western Australia [2018] WASCA 8 [56], [151].
[66] The State of Western Australia v BKJ [2018] WASCA 136 [119].
60The principles applicable to cases of intrafamilial sexual abuse were recently summarised by this court in The State of Western Australia v BKJ in the following terms:[67]
The principles applicable to cases of intrafamilial sexual abuse are well established. The primary sentencing considerations for such offences are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. Matters personal to an offender are ordinarily of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character ordinarily has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender: The State of Western Australia v PJW.
There is no tariff for offences of the kind committed by the respondent because of the great variation that is possible in the circumstances of the offending and of offenders. Nevertheless, it is important to consider comparable sentencing cases.
Any sexual penetration of a child is serious. The maximum penalty for an offence contrary to s 329(2) of the Criminal Code (WA) of 20 years' imprisonment illustrates this point.
It is relevant in a case such as this, where the respondent has sexually penetrated the victim in different ways, to acknowledge that there is no 'hierarchy' of sexual penetration in the sense that some forms of sexual penetration are always to be regarded as less serious than others: "C" v The State of Western Australia. That said, generally speaking, penile penetration of the vagina or the anus has been regarded as more serious than digital penetration, cunnilingus and fellatio. Without, in any way, attempting to describe all of those circumstances which can aggravate a sentence for an offence of sexual penetration where an act of sexual penetration is committed in circumstances of particular degradation or humiliation or causes injury (whether physical or psychological), such considerations should generally result in a more severe sentence. In the case of children, the offences of sexual penetration committed against very young children will also generally result in a more severe sentence. (footnotes omitted)
[67] The State of Western Australia v BKJ [88] ‑ [91].
61Custodial sentences for a single incident of indecent dealing with a child have tended to range from 9 months to 18 months (pre-transitional), with sentences at the higher end of the range involving the fondling of genitalia.[68] Obviously, however, the present case is far removed from a case involving a single incident.
[68] The State of Western Australia v Shephard [42], and cases there cited.
Disposition
62In our respectful opinion, for the reasons that follow, the sentence imposed on count 58 was manifestly excessive.
63The parties agree that the CCTV footage reveals the following as to the offending the subject of counts 58 and 59:[69]
(1)MG's breasts were exposed for approximately four seconds;
(2)MG was otherwise fully clothed, with only her breasts briefly exposed;
(3)the appellant's touching of MG's breasts with the fork was very brief, occurring for approximately two seconds;
(4)the appellant was sitting on the couch, with MG standing and facing him;
(5)L was bending over a coffee table approximately 1 m from MG and approximately 1.5 m from the appellant. L looked briefly at MG before looking back at the coffee table;
(6)K was sitting on the couch approximately 0.5 m from the appellant and approximately 2 m from MG. K appears to have been looking in the direction of MG;
(7)the offending did not involve the touching of either K or L; and
(8)there was no apparent communication between the appellant, MG, K and L.
[69] Appellant's submissions [41]; appeal ts 16.
64Consequently, the gravamen of these offences is the exposure of K and L, both young children, to a form of sexual touching between the appellant and the victim's mother, MG. Both the exposure of MG's breasts and the appellant's touching of her breasts with the fork occurred for a matter of only a few seconds. There was no physical contact with L. Nor was anything said to L about what was occurring.
65While the appellant committed a very large number of offences against K, count 58 was the only offence involving L. Further, there was no evidence or material before the sentencing judge to suggest, much less establish, that L was aware of the appellant's offending behaviour against K (apart from the offending the subject of count 59).
66Taking all these matters into account, the appellant's offence against L, in count 58, must be viewed as towards the lower end of the range of seriousness for offences of indecent dealing with a child known to be the offender's de facto child.
67The severity of the sentence on count 58 was not moderated, in the sense explained in Giglia, as it was ordered to be served cumulatively upon other sentences.
68The appellant pleaded guilty to counts 58 and 59, as well as the other counts on the indictment, for which he was given a 25% discount under s 9AA of the Sentencing Act. In our opinion, taking that into account, and taking into account the features of the appellant's offending referred to in [63] ‑ [65] above, and the maximum available penalty of 10 years' imprisonment, the sentence of 18 months' imprisonment must be seen as manifestly excessive.
69As the sentencing judge's discretion has miscarried in relation to one of the individual sentences forming part of the total effective sentence, the total effective sentence should be set aside and this court must exercise the sentencing discretion, afresh and for itself, on all aspects of the sentences imposed, not just the component on which error is shown.[70]
[70] There are many decisions of this court which so hold, applying the principle stated in McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9] to sentences imposed at the same time for multiple offences. See, for example, Sathitpittayayudh v The State of Western Australia [2015] WASCA 152 [28]; Burnes v The State of Western Australia [2017] WASCA 77 [41]; Gaskell [152]; YDN v The State of Western Australia [2018] WASCA 62 [53]; Law v The Queen [2019] WASCA 81 [134]. A different approach appears to have been taken by the Full Court of the South Australian Supreme Court in the context of the legislation applicable in South Australia. See R v Tyler [2016] SASCFC 7; (2016) 124 SASR 412; R v Irvine [2016] SASCFC 104; (2016) 126 SASR 146.
70It is, consequently, unnecessary to determine whether the sentence on count 59 was manifestly excessive.
71The upholding of ground 1 also makes it unnecessary to determine whether ground 2 succeeds. However, as ground 2 was fully argued and as we would, in any event, uphold the appeal on that ground, we will explain our reasons for so concluding.
Ground 2: totality
72The appellant contends that his total effective sentence infringes the first limb of the totality principle.
The appellant's submissions
73The appellant submits that the total effective sentence of 12 years 6 months' imprisonment does not bear a proper relationship to the overall criminality involved, taking into account:[71]
(1)the appellant's voluntary disclosure of some of the offending;
(2)the fact that, whilst the offending was serious, the offending did not involve the ongoing sexual penetration of a victim's vagina or anus, or a sexual relationship of such a type;
(3)the appellant's lack of a criminal record;
(4)the appellant's pleas of guilty and the 25% discount applied by the sentencing judge; and
(5)the total effective sentences imposed in the following cases that the appellant submits are comparable: The State of Western Australia v FJG,[72] AIM v The State of Western Australia,[73] and the cases reviewed by this court in VIM v The State of Western Australia.[74]
[71] Appellant's submissions [47].
[72] The State of Western Australia v FJG [2012] WASCA 206.
[73] AIM v The State of Western Australia [2014] WASCA 155.
[74] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
The State's submissions
74The State highlights the maximum penalties for the offences and the seriousness of the appellant's offending conduct.[75]
[75] Respondent's submissions [34] - [44].
75In the State's submission, the appellant's offending was correctly characterised as falling toward the upper end of the scale of seriousness.[76] It submits:
(1)The offending was aggravated by a grave breach of trust, its sustained and repeated nature, the fact that there were three victims, two of whom were very young, and the degree of depravity involved in a number of the offences and the offending as a whole.[77]
(2)The offences cannot properly be characterised as isolated incidents or momentary lapses.[78] Rather, the appellant persistently and callously treated his young de facto children, particularly K, as sexual playthings for the purposes of his own sexual gratification. He committed a series of serious offences against his two de facto daughters during a concentrated period of time, which involved subjecting the 11-year-old K, in particular, to debasing sexual acts, including ejaculating onto her face.[79]
(3)The absence of physical violence or extreme perversion, and the fact that the offending could conceivably have been worse, does not diminish the gravity of what actually occurred.[80]
(4)The appellant engaged in a gross breach of the position of trust he held in relation to his de facto children.[81] The victims were particularly vulnerable due to their young age and due to, at least in the case of K, how sexualised behaviour had evidently become normalised.[82]
(5)The offending had seriously damaging effects on S, as emerges from her victim impact statement.[83]
(6)The seriousness of the offending is elevated by the fact that, on a number of occasions, K fellated and masturbated the appellant to ejaculation.[84]
[76] Respondent's submissions [36].
[77] Respondent's submissions [36], [39].
[78] Respondent's submissions [37].
[79] Respondent's submissions [42], [67] - [68].
[80] Respondent's submissions [68].
[81] Respondent's submissions [40].
[82] Respondent's submissions [41].
[83] Respondent's submissions [43] - [44].
[84] Appeal ts 20.
76The State submits that: (1) matters personal to the offender carry less mitigatory weight in cases of sexual abuse against children; (2) the fact that an offender is otherwise of good character carries little weight in offences of this kind; (3) youth was not a mitigating factor for the appellant; and (4) the sentencing judge was not satisfied that the appellant had demonstrated any significant remorse.[85]
[85] Respondent's submissions [45] - [48]; appeal ts 21 - 23.
77The State submits that sentences imposed in one case of sexual offending can only provide limited guidance in deciding what sentence should be imposed for a similar offence in another case.[86] It submits that the most significant factor in comparing total effective sentences across a range of cases is the seriousness of the offending conduct,[87] which is influenced by factors including (1) the number of victims, (2) the number and type of offences, (3) the period of time over which the offending continued, (4) the age and vulnerability of the victims and (5) the relationship between the offender and the victim including the extent of any breach of trust.[88] The State submits that, having regard to the flexible guidance afforded by customary sentencing standards, the sentence imposed on the appellant is broadly consistent with the results in prior cases.[89]
[86] Respondent's submissions [49] - [50].
[87] Respondent's submissions [54], citing LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355 [82].
[88] Respondent's submissions [55], citing SCN v The State of Western Australia [2017] WASCA 138 [104].
[89] Respondent's submissions [65]. See also [66].
78The State draws attention to a number of comparable cases, highlighting:
(1) the review of sentences undertaken by this court in VIM, The State of Western Australia v Prince,[90] and LJH;[91] and
(2)the sentences imposed in LYN v The State of Western Australia,[92] JJR v The State of Western Australia[93] and in the cases reviewed in JJR.[94]
[90] The State of Western Australia v Prince [2011] WASCA 22.
[91] Respondent's submissions [52], [53], [57].
[92] LYN v The State of Western Australia [2019] WASCA 45.
[93] JJR v The State of Western Australia [2018] WASCA 51.
[94] Respondent's submissions [60] - [64].
It also seeks to distinguish features of the cases on which the appellant relies, namely The State of Western Australia v FJG and AIM, from those of the present case.[95]
[95] Respondent's submissions [58], [59], [66].
79Ultimately, the State submits that the total effective sentence was within a proper exercise of the sentencing discretion. A sentence of that length was necessary to give effect to the dominant sentencing considerations of punishment, deterrence and the protection of vulnerable children, and an accumulation of some of the individual sentences was required to adequately reflect the gravity of the appellant's serious offending against highly vulnerable children over a significant period of time in circumstances where he was in a position of trust as their de facto father.[96] While the sentence was high, and towards the top of the range, it did not reveal implied error.[97]
[96] Respondent's submissions [69] - [70].
[97] Appeal ts 19, 25.
Sentences imposed in other cases
80In the evaluation of whether, in a particular case, the total effective sentence infringes the totality principle, the guidance afforded by comparable cases is flexible rather than rigid. The mere fact that 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 that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. Consideration of the range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. The consistency sought by the exercise of appellate jurisdiction is consistency in the application of relevant legal principles.
81As Mitchell JA observed in JJR:[98]
Often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.
[98] JJR [168].
See also LJH.[99]
[99] LJH [81] ‑ [82]; JJR [169].
82We refer to, without repeating, the review of cases concerning sentences for serious intrafamilial sexual offending conducted in each of VIM, The State of Western Australia v Prince, LJH and JJR. By way of broad summary:
(1)In VIM, the court referred to a broad sentencing range, in post‑transitional terms, in cases of pleas of guilty, to sentences from 6 years 8 months' imprisonment to 12 years 8 months' imprisonment.[100]
(2)In The State of Western Australia v Prince, McLure P identified 12 cases involving pleas of guilty. Those cases disclosed a sentencing range from 4 years 2 months' imprisonment to 12 years 6 months' imprisonment, with the majority of cases involving the imposition of sentences of around 8 years' imprisonment.[101] In cases of pleas of not guilty, her Honour referred to cases involving sentences ranging from 6 years' imprisonment to 14 years 6 months' imprisonment.[102]
(3)In JJR, a large number of cases were reviewed in which the sentences ranged from 7 to 16 years' imprisonment.[103] The substantial majority of those sentences were imposed after trial.
[100] VIM [298] ‑ [309].
[101] The State of Western Australia v Prince [20].
[102] The State of Western Australia v Prince [20].
[103] See JJR [112] - [159].
83In cases involving sexual offending against child complainants, the need to give significant mitigating effect to a plea of guilty has often been emphasised.[104] We adopt this court's recent observations in LYN:[105]
It was important that the mitigating effect of the pleas of guilty be reflected, not only in the individual sentences, but in the total effective sentence. That is particularly so in a case involving sexual offending against child complainants. The process of giving evidence of such offences is often re-traumatising and damaging for the victims. Unless the benefits to the victims and the State resulting from pleas of guilty are properly reflected in the total effective sentence, there will be little incentive for an offender to plead guilty. The absence of such an incentive will increase the number of victims who are exposed to the risk of further psychological harm through the requirement for them to participate in the trial process. This court has previously recognised the appropriateness of a substantial discount for a plea of guilty in cases of sexual offending against children. (footnotes omitted)
[104] See, for example, LYN [51], and cases there cited; see also LJH [86].
[105] LYN [51].
Consequently, in our view, in considering broadly comparable cases, it is important to bear in mind whether a sentence was imposed after trial, or imposed upon the offender's plea of guilty.
84It may be noticed that the appellant's total effective sentence is within, but at the very top of, the ranges of sentences identified in VIM and in The State of Western Australia v Prince for offenders who pleaded guilty.
85There are a limited number of subsequent cases in which a total effective sentence of 12 years' imprisonment or more has been imposed upon pleas of guilty. Such cases include:
(1)RGT v The State of Western Australia,[106] in which this court imposed a total effective sentence of 16 years' imprisonment. That case involved 29 sexual offences, including 16 counts of sexual penetration committed against three complainants, one of whom was aged 2, and another between 7 and 9. The offending involved a range of penetration, including penile/vaginal penetration of two of the complainants.
(2)The State of Western Australia v BKJ, in which this court dismissed a State appeal against the imposition of a total effective sentence of 14 years' imprisonment. That case involved 61 sexual offences, including 24 counts of indecent recording and 34 counts involving indecent dealing or sexual penetration. The offender received a 25% discount on the individual sentences for his pleas of guilty. His offending spanned 10 years, against a complainant who was aged between 2 and 12 years. The offending included incidents of penile/vaginal penetration and penile/anal penetration and had many egregious features, including penetration of the complainant's vagina and anus with various implements, the use of various bondage objects and the filming and uploading of some of the offending behaviour.
(3)GHK v The State of Western Australia,[107] in which this court imposed a total effective sentence of 14 years' imprisonment. In that case, there were six victims. The 24 counts ranged from indecent dealing to multiple offences of sexual penetration, including digital/vaginal penetration, cunnilingus, fellatio, penile/vaginal penetration and attempted penile/anal penetration. The complainants ranged in age from 4 to 13 years when the offences were committed.
(4)GMS v The State of Western Australia,[108] in which this court dismissed an appeal against the imposition of a total effective sentence of 12 years 6 months' imprisonment. In that case, there was sexual offending against two complainants. The offending against one complainant occurred regularly over many years; the counts charged were representative. She became pregnant, leading to an abortion. The offences involved multiple penile/vaginal penetration offences. The pleas of guilty were entered only the day before trial. The offender had a prior conviction of indecent dealing with a child.
(5)LYN, in which this court sentenced the offender to a total effective sentence of 12 years' imprisonment for his sexual offending against three complainants, all of whom were his daughters. His offences included a number of indecent dealing offences, together with a range of forms of sexual penetration, including penile/vaginal penetration. Against two of the complainants, the offences were representative of a course of conduct by him that continued over many years.
[106] RGT v The State of Western Australia [2017] WASCA 120.
[107] GHK v The State of Western Australia [2014] WASCA 19.
[108] GMS v The State of Western Australia [2009] WASCA 107.
86These cases involved a combination of elements which made them materially more serious than the present case. These elements are, variously, the very young age of some of the complainants; the presence of penile/vaginal and, in some cases, penile/anal penetration; the representative nature of the offences charged; and the long periods, often a number of years, over which the offending extended. Also, in GMS, the pleas of guilty came at a very late stage.
87Very lengthy sentences were also imposed in SCN and B v The Queen,[109] but the offences committed and offending behaviour were so different from the present case that they can be put aside for present purposes.
[109] B v The Queen [2002] WASCA 236.
88Cases of sexual offending in which total effective sentences between 10 and 12 years were imposed after pleas of guilty include:
(1)EXF v The State of Western Australia,[110] in which this court dismissed an appeal against the imposition of a total effective sentence of 11 years 6 months' imprisonment. There were 14 counts of indecent dealing, including cunnilingus, fellatio and requiring the victim to masturbate the offender to ejaculation. The offences charged reflected a course of conduct over about six years against the offender's three stepdaughters. The offender pleaded guilty at a very late stage.
(2)MMC v The State of Western Australia,[111] in which this court dismissed an appeal against the imposition of a total effective sentence of 11 years' imprisonment. There were four complainants, three of whom were his de facto daughters. The offender pleaded guilty to 16 offences, of which five were unlawful carnal knowledge, four were penile penetration of the vagina and the remaining were, variously, digital penetration, cunnilingus, touching the complainant's breast or attempted penile/anal penetration. The offending against two of the complainants was representative and, in the case of one complainant, extended over almost three years.
(3)LJH, in which this court sentenced the offender to a total effective sentence of 10 years' imprisonment for a variety of sexual offences against a single 14 to 15‑year‑old complainant, who was his de facto daughter. There were 26 counts of sexual penetration, including nine counts of penile/vaginal penetration, as well as 17 counts of other sexual offences, mostly involving indecently recording of a de facto child. The offending extended over a period of almost two years.
[110] EXF v The State of Western Australia [2015] WASCA 118.
[111] MMC v The State of Western Australia [2012] WASCA 187.
89It is also relevant to consider sentences imposed in cases in which the offender pleaded not guilty. Plainly, the s 9AA discount for the sentence on individual offences does not itself apply to the total effective sentence. Consequently, mathematical precision in comparing total effective sentences in cases of pleas of guilty and not guilty is not possible. Nevertheless, as already observed, in cases of sexual offending against children, it is important that a substantial discount to the total effective sentence is given on account of an offender's pleas of guilty. When appropriate weight is given to the appellant's pleas of guilty, his sentence of 12 years 6 months' imprisonment is, in rough terms, equivalent to a sentence after trial in the region of 15 to 17 years. As Martin CJ's recent survey of cases in JJR demonstrates, sentences exceeding 15 years, even after pleas of not guilty, are relatively rare.
90One example may be found in ERA v The State of Western Australia,[112] in which this court dismissed an appeal against the imposition of a term of 16 years' imprisonment for 21 counts of sexual offences against four complainants. There were 10 counts of sexual penetration, six of which involved penile/vaginal penetration. The offending caused significant pain to the complainants; the offences were committed over a long period of time against two sets of sisters; and the appellant had prior convictions of incest with his daughter.
[112] ERA v The State of Western Australia [2013] WASCA 163.
91There are a number of cases where total effective sentences in the region of 12 to 13 years' imprisonment have been imposed, after pleas of not guilty, for sustained sexual offending that included penile/vaginal penetration. Such cases include:[113]
(1)MAS v The State of Western Australia[114] (12 years; 25 counts, including penile/vaginal penetration, penile/anal penetration, fellatio and cunnilingus, without consent in fact; the offending extended over seven years against the offender's de facto daughter, who was aged between 11 and 18 years; at times threats and violence were used; when she became pregnant the offender insisted she have an abortion).
(2)ARK v The State of Western Australia[115] (12 years; nine counts, including five counts of penile/vaginal penetration; representative of a course of offending over about four years from when the complainant was about 11 years old; the offender was physically aggressive and used manipulation and intimidation to ensure the complainant's continued compliance with his demands).
(3)JJR (12 years; 10 counts, four of which were sexual penetration, including penile/vaginal penetration, fellatio and digital penetration; two complainants, one aged between 9 and 11 years and the other between 7 and 12 years; the offending extended over about seven years; the sentence of 12 years' imprisonment was described as 'undoubtedly severe').
(4)AIM (12 years; 13 counts, six of which were sexual penetration, including penile/vaginal penetration, fellatio and digital penetration; two complainants, one aged between 7 and 8 years, the other between 4 and 7 years; the offences were representative and extended for about three years against one complainant and about 20 months against the other).
(5)CJF v The State of Western Australia[116] (12 years; six counts, four of which were sexual penetration, including penile/vaginal penetration and digital penetration; the offences were representative of ongoing sexual abuse occurring over an extended period commencing when the complainant was 9 years old; the offender used violence and threats).
(6)KSN v The State of Western Australia[117] (12 years; 15 counts, 14 of which were sexual penetrations, including penile/vaginal penetration, penile/anal penetration, fellatio, cunnilingus and digital penetration; the offences were representative of offending over about four or five years against the complainant when she was aged between 11 or 12 and 16 years; the offender used threats, forceful behaviour, alcohol and cannabis to facilitate the sexual activity).
(7)SG v The State of Western Australia[118] (12 years; 13 counts, 11 of which were sexual penetrations, including fellatio, digital penetration and penile/vaginal penetration, one of which resulted in pregnancy; the offending was representative of a course of conduct over four to five years while the complainant was aged between 11 and 16 years; the offender used bribery and promises together with intimidation and physical coercion to obtain sexual favours).
[113] The circumstances of the offending in each of these cases, with the exception of AIM, are outlined in more detail in JJR.
[114] MAS v The State of Western Australia [2012] WASCA 36.
[115] ARK v The State of Western Australia [2014] WASCA 45.
[116] CJF v The State of Western Australia [2012] WASCA 69.
[117] KSN v The State of Western Australia [2017] WASCA 156.
[118] SG v The State of Western Australia [2013] WASCA 236.
92We also refer to The State of Western Australia v FJG, in which this court imposed a total effective sentence of 10 years 6 months' imprisonment for 14 sexual offences, including offences of penile/vaginal penetration, fellatio, digital penetration and vaginal penetration with a device. The offences were committed against his two complainant daughters, one of whom was aged between 10 and 14 years, and the other between 8 and 14 years. The offender pleaded guilty to five of the offences. The offences were representative of a course of persistent sexual abuse over several years.
Disposition
93The appellant was convicted of 87 offences. However, to our minds, the number of charges is somewhat misleading. Twenty-six counts occurred on the night of 7 February 2017 and a further 30 counts occurred in a 15‑minute period on 12 February 2017. In these respects, the large number of offences arose from the video‑recording of the offending and the choice, by the prosecution, to charge separately for each time a form of sexual penetration or indecent dealing stopped and resumed.
94Further, while it is true that there were three victims of the appellant's offending, his only offence against L was count 58 which, for the reasons given in upholding ground 1, was towards the bottom of the range of offences of indecent dealing with a child known to be the offender's de facto child.
95The appellant's offending undoubtedly had a number of serious features. These include:
(1)his abuse of his position of trust as the de facto father of his victim;
(2)the very young age of two of his victims;
(3)the sustained nature of his offending against K;
(4)the significant degree of depravity exhibited by many of his offences against K; and
(5)the seriously damaging effects upon S of his offending against her.
We accept, as the respondent submits, that the appellant persistently and callously treated K as a sexual plaything for his own sexual gratification. We also accept the respondent's submission as to the limited weight to be attributed to the mitigating factors referred to in [76] above.
96However, unlike most of the cases referred to above, the appellant's offending did not include any penile/vaginal or penile/anal penetration. Also, while the appellant's offending extended over a substantial period of time, his offending against S occurred on two occasions and the offending against K occurred on 12 occasions within a six‑month period. By contrast, many of the cases referred to above involved offending extending over years, in some cases many years.
97Moreover, the State accepts, as it did at the sentencing, that the appellant's offending was not representative.[119] The State also accepts that the appellant cannot be seen as responsible for what might be thought to be K's unusually sexualised conduct reflected in the first group of offences against her.[120]
[119] ts 80; appeal ts 29.
[120] Appeal ts 29.
98In addition to the mitigatory benefit of his early pleas of guilty, the appellant made admissions to the police by which he voluntarily disclosed a number of offences which would otherwise not have come to light.
99In this case, consideration of broadly comparable cases, both those involving pleas of guilty and those involving pleas of not guilty, provides strong support for the conclusion that error must be implied. In so concluding, we do not overlook the cautionary observations in [80] ‑ [81] above that comparable cases inform, but do not control, the implied error inquiry. The total effective sentence imposed on the appellant is substantially equal to or greater than the total effective sentence imposed in many appellate decisions where the offender was convicted, after trial, of multiple offences of sexual penetration that (1) included penile/vaginal penetration, (2) involved younger victims, (3) were committed over a substantially longer period of time, (4) involved a course of conduct of which the convictions were representative, (5) involved violence or threats of violence, or (6) involved a combination of these features. Examples of these can be found in the cases referred to in [91] ‑ [92] above. As already noted, the appellant's sentence of 12 years 6 months' imprisonment is at the very top of the range of sentences identified in the surveys in VIM and in The State of Western Australia v Prince of comparable cases involving pleas of guilty. Within both those surveys, all of the cases near the top of the range involved a combination of these serious elements, which are absent from the present case. Further, the appellant's total effective sentence is equal to or greater than the total effective sentence imposed in a number of more recent cases where a plea of guilty was entered to offending involving a combination of these serious elements. See, for example, GMS, LYN, EXF and MMC.
100The State submits that the appellant's sentence is not inconsistent with patterns of sentencing for comparable cases because the appellant's offending had an additional element that is not present in the other cases. The State points to the involvement of the complainants' mother in the offending.[121] We do not accept this submission. MG was involved in only five of the appellant's 87 offences (counts 27, 29, 58, 59 and 61). Those five offences are, by any measure, not among the most serious of the appellant's offending. In our view, this feature of a few of the appellant's less serious offences cannot explain the conclusions drawn in [99] above concerning how the appellant's sentence fits with patterns of sentencing in reasonably comparable cases.
[121] Appeal ts 26 - 27.
101In our respectful view, when account is taken of (1) the circumstances of the appellant's offending, including its features mentioned in [93] ‑ [97] above, (2) the total effective sentences imposed in previous cases with some features comparable to the appellant's offending and (3) the aggravating and mitigating factors referred to by the sentencing judge and referred to above, the sentence of 12 years 6 months' imprisonment is not consistent with appropriate weight having been given to the appellant's early pleas of guilty to all of his offences. In all the circumstances of the case, error must be inferred from the total effective sentence that was imposed, which was, in our respectful opinion, unreasonable or plainly unjust.
102Ground 2 must be upheld.
Resentencing
103This court has the necessary material to enable it to resentence. Neither party suggested that anything more than what was before the sentencing judge was relevant to a resentencing.
104Apart from counts 58 and 59, neither party sought to challenge, or made submissions as to the individual resentencing on, the sentences for each of the individual offences. Like the sentencing judge, we consider that a discount of 25% is appropriate under s 9AA of the Sentencing Act in respect of the appellant's pleas of guilty to all counts. With the exceptions identified immediately below, the individual sentences imposed by the sentencing judge seem to us appropriate and we would impose the same sentences for the individual counts. The exceptions are as follows:
(1)On each of counts 34 and 36, we would impose a sentence of 12 months' imprisonment.
(2)On each of counts 58 and 59, we would impose a sentence of 4 months' imprisonment.
(3)For totality reasons, we would reduce the sentence on count 68 from 4 years to 3 years' imprisonment.
105In our view, the appropriate total effective sentence is 10 years' imprisonment. In order to achieve that, we have reduced the sentence on count 68 to 3 years and would order that the sentences on counts 3, 40 and 68 be cumulative on each other, and that all other sentences be served concurrently with those sentences and with each other.
106Like the sentencing judge, we would order that the appellant be eligible for parole and the sentence be backdated to 14 February 2017.
Conclusion
107For the above reasons, we would make orders as follows:
1.The appeal is upheld.
2.The sentences imposed by the sentencing judge are set aside.
3.In substitution, the individual sentences set out in Annexure B hereto are imposed.
4.The sentences on counts 3, 40 and 68 are to be served cumulatively on each other and on all other sentences.
5.The remaining sentences are to be served concurrently with the sentences on counts 3, 40 and 68 and with each other.
6.The sentence is backdated to commence on 14 February 2017.
7.The appellant is eligible for parole.
Annexure A
| Count | Date | Charge | Description | Sentence |
| 1 | Unknown date between 1 Jan 16 - 14 Sep 16 | Indecent dealing | Appellant rubbed S's buttock | 3 months Concurrent |
| 2 | Unknown date between 1 Jan 16 - 14 Sep 16 | Indecent dealing | Appellant stroked S's buttock | 3 months Concurrent |
| 3 | Sexual penetration | Appellant penetrated S's vagina with his finger | 3 years Cumulative | |
| 4 | Unknown date between 28 Aug 16 - 4 Feb 17 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 6 months Concurrent |
| 5 | Unknown date between 28 Aug 16 - 4 Feb 17 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 6 months Concurrent |
| 6 | Sexual penetration | Appellant allowed K to perform fellatio on him | 2 years 8 months Concurrent | |
| 7 | Indecent dealing | Appellant allowed K to masturbate his penis until he ejaculated | 3 years Concurrent | |
| 8 | Unknown date between 28 Aug 16 - 4 Feb 17 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 6 months Concurrent |
| 9 | Sexual penetration | Appellant rubbed K's clitoris | 3 years 2 months Concurrent | |
| 10 | Unknown date between 28 Aug 16 - 10 Feb 17 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 6 months Concurrent |
| 11 | Indecent dealing | Appellant rubbed K's vagina on the outside of her leggings | 10 months Concurrent | |
| 12 | Sexual penetration | Appellant rubbed K's clitoris | 3 years Concurrent | |
| 13 | Unknown date between 28 Aug 16 - 10 Feb 17 | Indecent dealing | Appellant allowed K to masturbate his penis until he ejaculated | 2 years 8 months Concurrent |
| 14 | 5 Feb 2017 | Indecent dealing | Appellant poked K's anus with his finger | 10 months Concurrent |
| 15 | Indecent dealing | Appellant tickled K's genital area | 14 months Concurrent | |
| 16 | Indecent dealing | Appellant repeatedly attempted to poke K's anus with his fingers | 10 months Concurrent | |
| 17 | Indecent dealing | Appellant rubbed K's vagina several times | 15 months Concurrent | |
| 18 | Indecent dealing | Appellant tickled K's breast area | 14 months Concurrent | |
| 19 | Indecent dealing | Appellant tickled K's genital area | 14 months Concurrent | |
| 20 | Indecent dealing | Appellant poked K's buttock and anus area with his fingers | 10 months Concurrent | |
| 21 | Indecent dealing | Appellant rubbed K's genital area | 15 months Concurrent | |
| 22 | Indecent dealing | Appellant grabbed K's buttock | 10 months Concurrent | |
| 23 | 6 Feb 2017 | Indecent dealing | Appellant rubbed K's genital area | 16 months Concurrent |
| 24 | Indecent dealing | Appellant rubbed K's buttock | 10 months Concurrent | |
| 25 | Indecent dealing | Appellant allowed K to rub his genital area | 14 months Concurrent | |
| 27 | 7 Feb 2017 | Indecent dealing | Appellant allowed MG to rub his genital area in K's presence | 20 months Concurrent |
| 29 | Indecent dealing | Appellant allowed K to touch his penis | 2 years 8 months Concurrent | |
| 30 | Indecent dealing | Appellant allowed K to rub his genital area | 2 years 6 months Concurrent | |
| 31 | Indecent dealing | Appellant rubbed his genital area in K's presence | 2 years 4 months Concurrent | |
| 32 | Indecent dealing | Appellant rubbed K's genital area while rubbing his own genital area | 2 years Concurrent | |
| 33 | Indecent dealing | Appellant allowed K to rub his genital area while he rubbed K's genital area | 12 months Concurrent | |
| 34 | Indecent dealing | Appellant kissed K on mouth, twice | 18 months Concurrent | |
| 35 | Indecent dealing | Appellant allowed K to rub his genital area | 2 years 8 months Concurrent | |
| 36 | Indecent dealing | Appellant kissed K on mouth | 16 months Concurrent | |
| 37 | Indecent dealing | Appellant masturbated his penis in K's presence | 2 years 4 months Concurrent | |
| 38 | Indecent dealing | Appellant masturbated his penis in K's presence | 2 years 4 months Concurrent | |
| 39 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 40 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Cumulative | |
| 41 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 42 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 43 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 44 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 45 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 46 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 47 | Indecent dealing | Appellant licked the hand K was using to masturbate his penis | 2 years Concurrent | |
| 48 | Indecent dealing | Appellant licked the hand K was using to masturbate his penis | 2 years Concurrent | |
| 49 | Indecent dealing | Appellant masturbated his penis in K's presence | 2 years 6 months Concurrent | |
| 50 | Indecent dealing | Appellant allowed K to rub his genitals | 2 years 6 months Concurrent | |
| 51 | Indecent dealing | Appellant masturbated his penis and ejaculated onto K's face | 4 years Concurrent | |
| 52 | Indecent dealing | Appellant licked his semen from K's face | 3 years 6 months Concurrent | |
| 53 | Indecent dealing | Appellant masturbated his penis in K's presence | 2 years 6 months Concurrent | |
| 54 | 8 Feb 2017 | Indecent dealing | Appellant allowed K to rub his genital area | 2 years 6 months Concurrent |
| 55 | Indecent dealing | Appellant allowed K to rub his genital area | 2 years 6 months Concurrent | |
| 58 | 10 Feb 2017 | Indecent dealing | Appellant tickled MG's exposed breasts with a fork in L's presence | 18 months Cumulative |
| 59 | Indecent dealing | Appellant tickled MG's exposed breasts with a fork in K's presence | 18 months Concurrent | |
| 61 | Indecent dealing | Appellant rubbed MG's exposed breasts in K's presence | 18 months Concurrent | |
| 62 | 11 Feb 2017 | Indecent dealing | Appellant rubbed K's buttocks while kissing her | 18 months Concurrent |
| 63 | 12 Feb 2017 | Indecent dealing | Appellant allowed K to rub his genital area | 2 years 6 months Concurrent |
| 64 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 65 | Indecent dealing | Appellant masturbated his penis in K's presence | 2 years 4 months Concurrent | |
| 66 | Indecent dealing | Appellant allowed K to rub his genital area | 2 years 10 months Concurrent | |
| 67 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 68 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Cumulative | |
| 69 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 70 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 71 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 72 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 73 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 74 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 75 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 76 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 77 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 78 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 79 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 80 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 81 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 82 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 83 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 84 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 85 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 86 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 87 | Indecent dealing | Appellant rubbed his genital area while K masturbated his penis | 3 years Concurrent | |
| 88 | Sexual penetration | Appellant allowed K to perform fellatio on him | 4 years Concurrent | |
| 89 | Indecent dealing | Appellant allowed K to masturbate his penis | 2 years 10 months Concurrent | |
| 90 | Indecent dealing | Appellant rubbed his genital area in K's presence | 2 years 6 months Concurrent | |
| 91 | Indecent dealing | Appellant rubbed his genital area in K's presence | 2 years 6 months Concurrent | |
| 92 | Sexual penetration | Appellant rubbed K's clitoris | 3 years Concurrent |
Annexure B
Count
Charge
Sentence
Concurrent/cumulative
1
Indecent dealing
3 months
Concurrent
2
Indecent dealing
3 months
Concurrent
3
Sexual penetration
3 years
Cumulative
4
Indecent dealing
2 years 6 months
Concurrent
5
Indecent dealing
2 years 6 months
Concurrent
6
Sexual penetration
2 years 8 months
Concurrent
7
Indecent dealing
3 years
Concurrent
8
Indecent dealing
2 years 6 months
Concurrent
9
Sexual penetration
3 years 2 months
Concurrent
10
Indecent dealing
2 years 6 months
Concurrent
11
Indecent dealing
10 months
Concurrent
12
Sexual penetration
3 years
Concurrent
13
Indecent dealing
2 years 8 months
Concurrent
14
Indecent dealing
10 months
Concurrent
15
Indecent dealing
14 months
Concurrent
16
Indecent dealing
10 months
Concurrent
17
Indecent dealing
15 months
Concurrent
18
Indecent dealing
14 months
Concurrent
19
Indecent dealing
14 months
Concurrent
20
Indecent dealing
10 months
Concurrent
21
Indecent dealing
15 months
Concurrent
22
Indecent dealing
10 months
Concurrent
23
Indecent dealing
16 months
Concurrent
24
Indecent dealing
10 months
Concurrent
25
Indecent dealing
14 months
Concurrent
27
Indecent dealing
20 months
Concurrent
29
Indecent dealing
2 years 8 months
Concurrent
30
Indecent dealing
2 years 6 months
Concurrent
31
Indecent dealing
2 years 4 months
Concurrent
32
Indecent dealing
2 years
Concurrent
33
Indecent dealing
12 months
Concurrent
34
Indecent dealing
12 months
Concurrent
35
Indecent dealing
2 years 8 months
Concurrent
36
Indecent dealing
12 months
Concurrent
37
Indecent dealing
2 years 4 months
Concurrent
38
Indecent dealing
2 years 4 months
Concurrent
39
Indecent dealing
2 years 10 months
Concurrent
40
Sexual penetration
4 years
Cumulative
41
Sexual penetration
4 years
Concurrent
42
Sexual penetration
4 years
Concurrent
43
Sexual penetration
4 years
Concurrent
44
Sexual penetration
4 years
Concurrent
45
Sexual penetration
4 years
Concurrent
46
Indecent dealing
2 years 10 months
Concurrent
47
Indecent dealing
2 years
Concurrent
48
Indecent dealing
2 years
Concurrent
49
Indecent dealing
2 years 6 months
Concurrent
50
Indecent dealing
2 years 6 months
Concurrent
51
Indecent dealing
4 years
Concurrent
52
Indecent dealing
3 years 6 months
Concurrent
53
Indecent dealing
2 years 6 months
Concurrent
54
Indecent dealing
2 years 6 months
Concurrent
55
Indecent dealing
2 years 6 months
Concurrent
58
Indecent dealing
4 months
Concurrent
59
Indecent dealing
4 months
Concurrent
61
Indecent dealing
18 months
Concurrent
62
Indecent dealing
18 months
Concurrent
63
Indecent dealing
2 years 6 months
Concurrent
64
Indecent dealing
2 years 10 months
Concurrent
65
Indecent dealing
2 years 4 months
Concurrent
66
Indecent dealing
2 years 10 months
Concurrent
67
Indecent dealing
2 years 10 months
Concurrent
68
Sexual penetration
3 years
Cumulative
69
Indecent dealing
2 years 10 months
Concurrent
70
Sexual penetration
4 years
Concurrent
71
Indecent dealing
2 years 10 months
Concurrent
72
Sexual penetration
4 years
Concurrent
73
Indecent dealing
2 years 10 months
Concurrent
74
Sexual penetration
4 years
Concurrent
75
Indecent dealing
2 years 10 months
Concurrent
76
Sexual penetration
4 years
Concurrent
77
Indecent dealing
2 years 10 months
Concurrent
78
Sexual penetration
4 years
Concurrent
79
Indecent dealing
2 years 10 months
Concurrent
80
Sexual penetration
4 years
Concurrent
81
Indecent dealing
2 years 10 months
Concurrent
82
Sexual penetration
4 years
Concurrent
83
Indecent dealing
2 years 10 months
Concurrent
84
Indecent dealing
2 years 10 months
Concurrent
85
Sexual penetration
4 years
Concurrent
86
Indecent dealing
2 years 10 months
Concurrent
87
Indecent dealing
3 years
Concurrent
88
Sexual penetration
4 years
Concurrent
89
Indecent dealing
2 years 10 months
Concurrent
90
Indecent dealing
2 years 6 months
Concurrent
91
Indecent dealing
2 years 6 months
Concurrent
92
Sexual penetration
3 years
Concurrent
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech29 AUGUST 2019
27
34
1