Miller v The State of Western Australia
[2021] WASCA 138
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MILLER -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 138
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 22 JULY 2021
DELIVERED : 6 AUGUST 2021
FILE NO/S: CACR 149 of 2020
BETWEEN: ANDREW JAMES MILLER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GLANCY DCJ
File Number : IND 851 of 2020
Catchwords:
Criminal law - Application for leave to appeal against sentence - Appellant convicted of five counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) - Whether the individual sentences imposed by the sentencing judge were manifestly excessive as to type - Whether a conditionally suspended term of imprisonment should have been imposed for each count - Whether the total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 320(4)
Sentencing Act 1995 (WA), s 6, s 9AA, s 39(3), s 39(4)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Seamus Rafferty Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Clarke v The State of Western Australia [2018] WASCA 190
GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272
HNA v The State of Western Australia [2016] WASCA 165
Kabambi v The State of Western Australia [2019] WASCA 44
Monisse v The State of Western Australia [2021] WASCA 52
Nguyen v The State of Western Australia [2021] WASCA 128
PJB v The State of Western Australia [2018] WASCA 150
The State of Western Australia v AHD [2021] WASCA 13
The State of Western Australia v Shephard [2018] WASCA 140
JUDGMENT OF THE COURT:
On 22 September 2020, the appellant was convicted on his pleas of guilty of five counts of indecent dealing with a child under the age of 13 years. The victims of these offences were two girls, RC and RD, who, at the time of the commission of the offences, were aged 8 and 10 years old respectively. Count 1 occurred on an unknown date between 25 November 2018 and 12 September 2019, and concerned RC. Counts 2 ‑ 5 occurred during an incident on 24 August 2019, and concerned RD.
On 24 September 2020, the appellant was sentenced by Glancy DCJ to a total effective sentence of 3 years 6 months' immediate imprisonment and made eligible for parole. The details of the charges and the individual sentences that were imposed are set out in the table below.
Charge
Description
Maximum
Sentence
Count 1
On an unknown date between 25 November 2018 and 12 September 2019 at Wembley, the appellant indecently dealt with RC, a child under the age of 13 years, by touching her vagina.
10 years' imprisonment
18 months' immediate imprisonment (head sentence)
Count 2
On 24 August 2019 at Wembley, the appellant indecently dealt with RD, a child under the age of 13 years, by placing her on his naked lap.
10 years' imprisonment
6 months' immediate imprisonment (cumulative) (reduced from 16 months for totality)
Count 3
On 24 August 2019 at Wembley, the appellant indecently dealt with RD, a child under the age of 13 years, by having her touch his penis.
10 years' imprisonment
18 months' immediate imprisonment (cumulative)
Count 4
On 24 August 2019 at Wembley, the appellant indecently dealt with RD, a child under the age of 13 years, by washing her back and shoulders.
10 years' imprisonment
10 months' immediate imprisonment (concurrent)
Count 5
On 24 August 2019 at Wembley, the appellant indecently dealt with RD, a child under the age of 13 years, by placing her on his naked lap.
10 years' imprisonment
16 months' immediate imprisonment (concurrent)
The appellant relies on two grounds of appeal. As explained at the hearing of the appeal, ground 1 alleges that each of the individual sentences is manifestly excessive as to type.[1] The appellant contends that suspended or conditionally suspended terms of imprisonment should have been imposed for each count. Ground 2 alleges that the length of the total effective sentence infringed the first limb of the totality principle.[2]
[1] Appeal ts 2.
[2] Appeal ts 3.
For the reasons which follow, we would dismiss the appeal.
The facts
The appellant admitted the facts in their entirety and took no issue with them in the sentencing proceedings or in this court. They are as follows.[3]
[3] ts 5 - 8.
At all material times, the appellant lived with his family in a house in a suburb of Perth. At the time of the offending, the appellant was 47 years of age. The victims and their families lived in neighbouring houses. They were friends of the appellant's son, and frequently played with him at his home. All of the offences were committed in the presence of the appellant's son, who was, at the time, 8 years old.
As to count 1, RC was 9 years old at the time of the offence. She was in the backyard of the appellant's home, playing with the appellant's son in the pool. RC was wet from falling into the pool. The appellant took RC's clothes from her and put them in a clothes dryer. He gave RC a towel to wear. The appellant, RC and the appellant's son then returned outside. There, the appellant lifted RC onto a log and instructed her to open her towel. The appellant then twice touched RC's vagina with his fingers, stopping only when she repeatedly told him to do so. Shortly after, the appellant put RC onto the ground, leaving her to play with his son. The appellant then took RC and his son into his son's bedroom, where he instructed RC to lay on the bed and roll onto her front. RC grew uncomfortable, and said, 'No, no'. A short time later, RC was told to go home.
We now turn to counts 2 - 5.
On 24 August 2019, the appellant was at home with RD and his son, who had been playing together in the backyard. RD was 10 years old. The appellant entered the yard, wearing only a towel, and instructed the children to get into the bath. RD was escorted along the side of the property, into the side entrance of the house, and into the bathroom.
The appellant got into the bath with his son and RD. All three were naked. The appellant coaxed RD over to him and positioned her on his lap, above his penis, and held her there with his hands (count 2). RD moved away and sat on the other side of the bath.
After a short time in the bath, the appellant stood with RD, in the bathroom, and encouraged her to touch his penis, which she did (count 3). RD then entered the shower, and the appellant followed her. He positioned RD so that she was facing towards the wall and proceeded to wash her back and shoulders (count 4). RD moved away from the shower and got back into the bath with the appellant's son. The appellant followed RD and slid into the bath behind her. He lifted RD and positioned her on his lap (count 5).
The appellant was interviewed by police on 12 and 23 September 2019. He made no admissions.[4]
[4] ts 8.
The victim impact statements
The sentencing judge was provided with victim impact statements, written on behalf of RC and RD. It is patently clear from these documents that the appellant's offending has had profound and continuing adverse consequences for each child and their parents. Both victims are engaged in counselling. Their parents feel betrayed by the appellant and experience anguish because of their feelings of being unable to protect their children.[5]
[5] ts 40.
The appellant's personal circumstances
As we have mentioned, the appellant was 47 years of age at the time of the commission of the offences. He was 49 years of age when he was sentenced.
The appellant was born in New Zealand, and had what was described at the sentencing hearing as a 'happy and supportive childhood'.[6] His family remain supportive of him. The appellant is married and has three children.
[6] ts 19.
The appellant was described by defence counsel as 'a very intelligent man'.[7] He has a degree in science, and worked as a geologist until about 1999. After travelling with his wife overseas, they returned to Australia in 2004 and purchased a business, which they have operated since that time.
[7] ts 20.
The appellant has no prior criminal history.
Since the appellant was 15 years old, he has been drinking alcohol. He has a long history of alcohol abuse and was drinking excessively at the time of the offending. The appellant has also suffered from anxiety for a considerable period of time.
Psychological reports
The sentencing judge was provided with a report dated 17 September 2020, which was commissioned by defence counsel and written by Ms Helen Fowler, an experienced forensic clinical psychologist.
Ms Fowler reported as follows:
(1)The appellant was unable to offer any insightful comments as to what may have motivated his behaviour.[8]
(2)At the time of the offending, the appellant said he was experiencing stress at work and was finding it difficult to cope with an attraction he had developed towards the mother of one of the victims.[9]
(3)The appellant said that he accepted he had offended against RD as she alleged, even though he had no recollection of committing the offences.
(4)The appellant meets the criteria for alcohol use disorder, according to DSM‑5. He has a long‑term history of serious problems with alcohol consumption.[10] He often drinks alone and has on occasion done so while caring for his children (and their friends).
(5)She could not, 'with any confidence, provide a likely explanation for [the appellant's] sexual behaviour with children'.[11]
(6)As to the appellant's risk of further offending, Ms Fowler gave no opinion as to the likelihood that the appellant would reoffend in a similar manner in the future. However, she stated:[12]
It is recommended that [the appellant] should not be left alone with underage female children [nor] consume alcohol alone with underaged children due to its disinhibiting effect and it appearing to then allow him to act in a manner motivated by unclear factors.
(7)She recommended that the appellant undergo residential alcohol rehabilitation.[13]
[8] Ms Fowler's report, page 2.
[9] Ms Fowler's report, page 7.
[10] Ms Fowler's report, page 5.
[11] Ms Fowler's report, page 7.
[12] Ms Fowler's report, page 7.
[13] Ms Fowler's report, page 8.
Defence counsel also provided the sentencing judge with a short report written by Mr Nigel Spurgeon, the appellant's treating psychologist, dated 18 September 2020. Mr Spurgeon reported as follows:
(1)The appellant first attended upon him on 26 September 2019, and had attended a total of 13 consultations.
(2)The appellant reported to him that he had made the decision that he did not want alcohol in his life in the future, and had remained abstinent from alcohol since being charged with the present offences.
(3)He believed that the appellant's risk of relapse with alcohol consumption was low.
(4)He had not seen any evidence of the appellant having a sexual interest in children, and did not believe that the appellant posed a risk to children.
The sentencing submissions
In his written and oral submissions before the sentencing judge, defence counsel accepted that the appellant's offending constituted a gross violation of trust and was further aggravated by being committed in the presence of the appellant's son.[14] It was said on the appellant's behalf that he accepted full responsibility for his offending, but remained unable to offer any insight as to what motivated this behaviour. While the appellant stated that he was heavily intoxicated during the commission of the offences, consuming up to two bottles of whisky per day at the material time, it was accepted that his voluntary intoxication afforded no mitigation.[15]
[14] Appellant's sentencing submissions, par 6; WAB 87.
[15] Appellant's sentencing submissions, par 7; WAB 87.
It was submitted by defence counsel that, although the appellant's offending would ordinarily be met with terms of immediate imprisonment, her Honour should suspend the terms of imprisonment in their entirety. Defence counsel emphasised the mitigating circumstances in the case and asserted that the offending was 'towards the lower end of the scale of seriousness'.[16]
[16] Appellant's sentencing submissions, pars 13 - 17; WAB 89 - 90.
The prosecutor submitted that the only appropriate disposition was a term of immediate imprisonment on each count, having regard to the sentencing objectives of general and specific deterrence, and the protection of vulnerable children. The prosecutor pointed out that the offending occurred on separate occasions, some 10 months apart, and involved two young and vulnerable victims. The prosecutor emphasised that the offences were a breach of the trust and confidence that had been reposed in the appellant by the victims' parents.[17] The prosecutor referred the sentencing judge to the victim impact statements and the adverse consequences of the offending on the victims and their families.
[17] ts 24.
The sentencing remarks
The sentencing judge expressly identified the following matters as aggravating factors:
(1)The 'very significant age difference' between the appellant and each of his victims.[18]
(2)The victims were young children, who, by reason of their age, were vulnerable.[19]
(3)The appellant's offending involved two victims.[20]
(4)The offending involved a breach of the trust that had been placed in the appellant by the victims' parents.[21]
(5)The offences were committed in front of the appellant's son.[22]
(6)With respect to the offences in counts 2 ‑ 5, the offending was persistent, and continued despite the victim doing her best to avoid the appellant's actions.[23]
[18] ts 41.
[19] ts 41.
[20] ts 41.
[21] ts 41.
[22] ts 41.
[23] ts 41.
Her Honour referred to the victim impact statements at some length.[24] It is clear that she regarded the adverse impact of the offending upon the victims as an important sentencing factor.
[24] ts 40.
Her Honour acknowledged that the offending did not involve threats or violence. She stated (correctly) that while such matters would have made the offending more serious, their absence did not 'make what [the appellant] did any better'.[25]
[25] ts 41.
Her Honour said that the acts committed by the appellant were 'a serious example of this kind of offending'. She expressly rejected the submission put to her by defence counsel that the offending fell 'at the lowest end of the scale of seriousness'.[26]
[26] ts 42.
Her Honour acknowledged the following mitigating factors:
(1)The pleas of guilty, for which her Honour applied a discount of 25% from the head sentence that she otherwise would have imposed on each count, pursuant to s 9AA of the Sentencing Act 1995 (WA).[27]
(2)The appellant was remorseful.[28]
(3)The appellant had no prior criminal history, and he was a person 'of otherwise good character'.[29]
(4)The appellant had voluntarily attended counselling with Mr Spurgeon to address his alcohol abuse and other issues.[30]
(5)The appellant was presently abstinent from alcohol.[31]
(6)The appellant was someone who had never been imprisoned before.[32]
[27] ts 42 - 43.
[28] ts 43.
[29] ts 43.
[30] ts 43.
[31] ts 43.
[32] ts 43.
Her Honour acknowledged that the imposition of a term of imprisonment was a sentence of last resort. She observed that sexual offending against children generally requires substantial penalties in order to provide personal and general deterrence and having regard to the need to protect vulnerable children. Her Honour also recognised that rehabilitation was a relevant sentencing factor.[33] She made no specific finding, one way or another, as to the appellant's risk of reoffending in a like way.
[33] ts 43 - 44.
Her Honour stated that she was satisfied that the seriousness of the offending was such that only a term of imprisonment could be justified.[34]
[34] ts 44.
Without regard to totality, her Honour said she would have imposed the following terms of imprisonment:[35]
Count 1- 18 months
Count 2- 16 months
Count 3- 18 months
Count 4- 10 months
Count 5- 16 months
[35] ts 44.
After taking into account totality, her Honour imposed the sentences set out in the table at [2] of these reasons. It is noted that her Honour reduced the term of imprisonment on count 2 from 16 months to 6 months for totality.[36]
[36] ts 45.
Her Honour then considered the question of whether the terms of imprisonment could be suspended. She decided that, notwithstanding the mitigating factors, the seriousness of the offending was such that it was inappropriate to suspend the terms of imprisonment she had imposed.[37]
[37] ts 46.
The appellant's submissions
In support of ground 1, senior counsel for the appellant made it clear that there was no challenge to the length of the individual sentences of imprisonment that were imposed by her Honour.
Senior counsel for the appellant accepted that there were serious aspects to the appellant's offending and did not dispute the existence of the aggravating factors identified by the sentencing judge. His submissions focused on the mitigating factors. Senior counsel asserted that there was an 'unusual combination' of factors which, when taken together, should persuade this court that it was not open to her Honour to be positively satisfied that it was inappropriate to suspend or conditionally suspend each of the terms of imprisonment imposed.[38]
[38] Appeal ts 4.
Senior counsel accepted that, generally, a term of immediate imprisonment is the only appropriate disposition in relation to sexual offending against children, but submitted that there have been cases involving non‑penetrative sexual offending against children where, due to the unusual and exceptional combination of mitigating factors, a suspended term of imprisonment had been imposed.
The cases cited on behalf of the appellant are GJT v The State of Western Australia;[39] The State of Western Australia v Shephard[40] and PJB v The State of Western Australia.[41] It was submitted that the circumstances of the appellant's case are sufficiently unusual and exceptional to justify the imposition of suspended sentences.
[39] GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272.
[40] The State of Western Australia v Shephard [2018] WASCA 140.
[41] PJB v The State of Western Australia [2018] WASCA 150.
Senior counsel for the appellant relied on his submissions on ground 1 to support the contention in ground 2.[42]
[42] Appeal ts 9.
Relevant legal principles
The general principles governing an appeal alleging that a sentence is manifestly excessive or that the total effective sentence infringed the first limb of the totality principle are well‑established. We adopt, without repeating, the summary of principles in Kabambi v The State of Western Australia.[43]
[43] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Equally well‑established are the principles which apply to a ground alleging that a sentence is manifestly excessive as to type, where it is claimed that a sentencing judge should have imposed a suspended, rather than an immediate, term of imprisonment. These principles were summarised in HNA v The State of Western Australia[44] and, more recently, in Monisse v The State of Western Australia[45] and Nguyen v The State of Western Australia.[46] The question is whether the appellant has demonstrated that it was not reasonably open for the primary sentencing court to conclude that suspending the term of imprisonment was inappropriate.
[44] HNA v The State of Western Australia [2016] WASCA 165 [23] ‑ [32].
[45] Monisse v The State of Western Australia [2021] WASCA 52 [36] - [42].
[46] Nguyen v The State of Western Australia [2021] WASCA 128 [78] - [79].
It has long been settled in this State that the primary sentencing considerations for sexual offences against children are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children.
In such cases, the personal circumstances of the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has limited 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.[47]
[47] The State of Western Australia v AHD [2021] WASCA 13 [56] - [57].
Disposition
We will deal with the two grounds of appeal together.
Her Honour was correct to reject the submission put to her by defence counsel that the appellant's offending fell at the lowest end of the scale of seriousness. Having regard to the aggravating factors identified by her Honour and the impact the appellant's offending had on his victims and their families, there is no doubting the seriousness of the appellant's criminal conduct.
Each incident was persistent and far from fleeting. In respect of count 1, the appellant touched RC's vagina twice. She repeatedly told him to stop. A short time later, he took the victim into his son's bedroom and instructed her to lay on the bed and roll onto her front. Although, at this point, the appellant did not touch RC, it caused her understandable disquiet. Counts 2 ‑ 5 involved the appellant offending against RD, initially in the bath, then in the shower, and then again in the bath. The conduct against RD involved the appellant twice making her sit on his lap while he was naked, on or near his penis, and encouraging her to touch his penis, which she did. All of the offending took place in the presence of his son and took advantage of the friendships the appellant's son had made with the victims. Those friendships have been destroyed by the appellant's actions. The appellant exploited the trust reposed in him by the victims' parents, who had been neighbours and friends.
The appellant's personal circumstances provide some mitigation, but, in accordance with the principles referred to in [42] ‑ [43] above, cannot be accorded substantial weight because of the need to provide personal and general deterrence, and to protect vulnerable children like the victims in this case.
While the appellant has taken steps to address his long‑term alcoholism, the evidence before the sentencing judge did not reveal that he is rehabilitated. Further, while his alcoholism may have disinhibited the appellant at the time of the commission of these offences, it does not explain, much less mitigate, what he did to the victims. The true cause of the appellant's offending remains unknown. In these circumstances, it is not possible to gauge the appellant's risk of reoffending.
Ordinarily, as a matter of fact, offences of the kind engaged in by the appellant are met with immediate terms of imprisonment. The appellant acknowledges this, but submitted that here there was an unusual combination of circumstances which justified the imposition of suspended sentences. The combination of circumstances includes (a) the pleas of guilty at the first reasonable opportunity, (b) the appellant's genuine remorse, (c) the voluntary counselling he has engaged in, and (d) his prior good record. While we accept that all of these factors are mitigating, it cannot be accepted, having regard to this court's experience, that they are unusual or exceptional.
The small number of cases relied upon by the appellant do not advance the grounds of appeal. As this court observed in Clarke v The State of Western Australia,[48] whether a sentence infringes the totality principle is not answered simply by reference to other cases. No two cases are ever precisely the same. In the end, each case has to be decided on its own facts and circumstances. Error will not be demonstrated simply because a previously decided case or cases appear to involve similar offending, but different sentences. Further, the facts and circumstances of GJT and Shephard each have features which clearly distinguish them from the present case.
[48] Clarke v The State of Western Australia [2018] WASCA 190 [54].
In GJT, unlike the present case, the offending was described by the sentencing judge as being 'at the very low level of offending'.[49] Further, the offending in that case occurred some 15 or 16 years before the offender was sentenced, and in circumstances where, in that lengthy intervening period, the appellant was substantially rehabilitated.
[49] GJT [6].
In Shephard, the State appealed against the imposition of a 16‑month term of imprisonment conditionally suspended for 18 months, for five offences of indecent dealing involving three victims. The State did not challenge the length of the terms of imprisonment imposed by the sentencing judge. The State's appeal was upheld and the respondent was sentenced to a term of 16 months' immediate imprisonment.
In PJB, the appellant was convicted after trial of three offences of indecently dealing with a child. There were two victims, one being his de facto daughter who was under the age of 16, and the other a female under the age of 13 years. This court refused leave to appeal in respect of challenges to one of the individual sentences and the total effective sentence of 2 years 9 months' immediate imprisonment. The outcome of a single case does not demonstrate error in the present case.
Having evaluated all of the relevant circumstances, including the combination of mitigating factors highlighted by senior counsel for the appellant, the seriousness of the offences was such that it was well open to the sentencing judge to conclude that suspending the terms of imprisonment was not appropriate. We would go further and state that her Honour would have erred had she suspended the terms of imprisonment. As to the length of the total effective sentence, we are far from persuaded that it infringed the first limb of the totality principle. Implied error has not been established. We would not grant leave to appeal in respect of either ground. The appeal must be dismissed.
Orders
The orders we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
6 AUGUST 2021
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