Mills v The State of Western Australia [No 2]
[2017] WASCA 52
•22 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MILLS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2017] WASCA 52
CORAM: BUSS P
MAZZA JA
BEECH J
HEARD: 2 MARCH 2017
DELIVERED : 22 MARCH 2017
FILE NO/S: CACR 85 of 2016
BETWEEN: ALEX CARL MILLS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 87 of 2016
BETWEEN :RICHARD CHARLES COOMBS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
File No :IND 943 of 2015
Catchwords:
Criminal law and sentencing - Sexual offending against children - Offences of sexual penetration, carnal knowledge and indecent dealing - Whether total effective sentences infringed the totality principle
Legislation:
Nil
Result:
Appeals dismissed
Category: D
Representation:
CACR 85 of 2016
Counsel:
Appellant: In person
Respondent: Mr R G Wilson
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
CACR 87 of 2016
Counsel:
Appellant: Mr S Watters
Respondent: Mr R G Wilson
Solicitors:
Appellant: Legal Pathways
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
BPR v The State of Western Australia [2007] WASCA 200
Chan v The Queen (1989) 38 A Crim R 337
ERA v The State of Western Australia [2013] WASCA 163
EXF v The State of Western Australia [2015] WASCA 118
FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313
GGM v The State of Western Australia [No 2] [2011] WASCA 259
Giglia v The State of Western Australia [2010] WASCA 9
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
HFM v The State of Western Australia [2012] WASCA 217
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hughes v The State of Western Australia [2014] WASCA 78
L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135
M v The State of Western Australia [2007] WASCA 238
McKenna v The State of Western Australia [2014] WASCA 201
Neumann v The State of Western Australia [2013] WASCA 70
NHT v The State of Western Australia [2016] WASCA 167
R v Avery [2002] WASCA 136
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
RDC v The State of Western Australia [2012] WASCA 16
RNN v The State of Western Australia [2010] WASCA 26
Roffey v The State of Western Australia [2007] WASCA 246
Schriever v The State of Western Australia [2008] WASCA 133
The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v PJW [2015] WASCA 113
The State of Western Australia v Prince [2011] WASCA 22
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
REASONS OF THE COURT:
Introduction
Both appellants were convicted after trial of serious sexual offences against two boys who were brothers. They appeal against their sentences.
Mr Mills was convicted of five counts of indecently dealing with a child under 14 and one count of committing an act of gross indecency. He was sentenced to a total effective sentence of 5 years' immediate imprisonment.
Mr Coombs was convicted of two counts of indecently dealing with a child under 14, two counts of permitting a child to have carnal knowledge of him, two counts of carnal knowledge against the order of nature, and three counts of committing an act of gross indecency. He was sentenced to a total effective sentence of 9 years' immediate imprisonment.
Mr Mills appeals on the ground that the individual sentences were manifestly excessive, and the total sentence infringed the first limb of the totality principle.
Mr Coombs appeals on the ground that the total effective sentence infringed both limbs of the totality principle.
In both appeals, the application for leave to appeal was referred to the hearing of the appeal.[1]
[1] Orders of Mazza JA dated 17 September 2016.
For the reasons that follow, we would dismiss both appeals.
The charges and the sentences
The appellants were convicted under provisions of the Criminal Code (WA) (Code) which have since been repealed. The maximum penalties for these offences are less than the maximum penalties for the same conduct under the current provisions of the Code.
The indecent dealing offences carried a maximum penalty of 7 years' imprisonment, and the gross indecency count carried a maximum penalty of 3 years. The offences of permitting a child to have carnal knowledge of a male and of having carnal knowledge against the order of nature both carried a maximum penalty of 14 years.
The individual sentences of imprisonment imposed upon Mr Mills were:
Count
Offence
Sentence
Maximum penalty
1
Indecent dealing with BM, by washing his genitals
2 years
7 years
2
Indecent dealing with BM, by exposing his erect penis to BM
16 months
7 years
3
Indecent dealing with BM, by washing his genitals
2 years
7 years
4
Indecent dealing with BM, by placing BM's hand on the appellant's penis
18 months
7 years
5
Indecent dealing with BM, by making BM suck the appellant's penis
3 years 6 months
7 years
12
Gross indecency with SM, by placing his hand on SM's groin
18 months
3 years
In structuring the relationship between the individual sentences, the sentencing judge had regard to both limbs of the totality principle. She determined that the sentence for count 5 be the head sentence, with the sentence for count 12 to be served cumulatively and all other sentences to be served concurrently.[2]
[2] ts 951.
The individual sentences of imprisonment imposed upon Mr Coombs were:
Count
Offence
Victim's Age
Sentence
Max Penalty
6
Indecently dealt with BM, a child under 14 years, by sucking his penis
12 - 13
3 years 6 months
7 years
7
Indecently dealt with BM, a child under 14 years, by sucking his penis
12 - 13
3 years 6 months
7 years
8
Permitted BM to have carnal knowledge of him
12 - 13
5 years
14 years
10
Had carnal knowledge of BM
13 - 14
5 years
14 years
11
Had carnal knowledge of BM
13 - 14
5 years
14 years
14
Gross indecency with SM, by sucking his penis
15
2 years 6 months
3 years
15
Gross indecency with SM, by sucking his penis
15
2 years 6 months
3 years
16
Procured SM to commit an act of gross indecency with him, by procuring SM to suck his penis
15
2 years 6 months
3 years
17
Permitted SM to have carnal knowledge of him
15
5 years reduced to 4 years to account for totality
14 years
The sentencing judge ordered that the 5‑year sentence on count 10 be the head sentence, and reduced the cumulative sentence of 5 years on count 17 to 4 years, making the total effective sentence 9 years' immediate imprisonment.[3]
[3] ts 951.
The facts
BM was born on 26 August 1975.[4] SM was born on 11 May 1970.[5]
[4] ts 234, exhibit 1.
[5] ts 342, exhibit 7.
The sentencing judge made the following findings of fact that provide the context for the offences committed by the appellants:
(a)Both Mr Coombs and Mr Mills migrated from New Zealand. They lived together at the same address from about 1980. Mr Mills assisted Mr Coombs in Coombs' car detailing businesses.
(b)When he was 14 or 15 years old, SM started to work in one of Mr Coombs' car detailing businesses. BM was five years younger. The appellant met BM when Mr Mills and Mr Coombs took SM, SM's girlfriend and BM to the Perth airport to see the Concorde jet.
(c)SM and BM came from a dysfunctional family in which their stepfather was often violent towards them. There was very little money in the house and the boys did not experience treats or luxuries.
(d)Both Mr Mills and Mr Coombs assessed that situation and saw that the boys were vulnerable.
(e)Staying at the appellants' home for a weekend became a regular occurrence for BM. He was given treats he was not used to. The appellants took BM to the Fremantle Markets, Rockingham shopping centre and to restaurants, experiences he had never had before. They groomed the boys for increasingly serious sexual conduct.[6]
[6] ts 940 - 941, 943.
The judge made the following findings of fact as to Mr Mills' offending:
(a)Mr Mills made the first move on one of the two boys. When BM had a shower at their house while staying over, Mr Mills went into the bathroom, took a sponge and washed BM's genitals. That conduct was repeated on numerous occasions. Counts 1 and 3 relate to such conduct.
(b)Count 2 occurred when Mr Mills laid down next to BM on BM's bed in order to wake him up. He stroked BM's hair. When BM woke up, Mr Mills exposed his erect penis to BM and said 'See what you do to me'.
(c)That occurred again on another occasion; this time Mr Mills placed BM's hands on Mr Mills' penis, constituting count 4.
(d)When BM withdrew his hand, Mr Mills pushed BM's head onto his penis, making BM give Mr Mills oral sex for a minute or so, constituting count 5.
(e)This offending occurred in 1985 and 1986 when BM was aged between 9 and 11.
(f)The charges Mr Mills was convicted of were representative of a course of conduct. There were two or three further occasions when Mr Mills made BM give him oral sex.
(g)Mr Mills rewarded BM for allowing him to deal with him in this sexually exploitative way by buying him a bicycle for his 11th birthday, a surfboard for his 12th birthday, and regularly taking him to the beach.
(h)In early 1986, Mr Mills made a sexual advance on SM. He took him to Kalamunda to teach him to drive. When the car was stopped, Mr Mills placed his hand on SM's groin.[7]
[7] ts 941 - 942.
The sentencing judge made the following findings of fact as to Mr Coombs' offending:
(a)From 1985, SM worked for Mr Coombs in his car detailing business. In 1986, Mr Coombs and SM were cleaning the inside of a camper van. Mr Coombs grabbed SM, pulled down his shorts and started sucking his penis. SM told Mr Coombs, 'No', but Mr Coombs continued until SM ejaculated in his mouth (count 14).
(b)After that, there were many occasions when Mr Coombs came into SM's bedroom at night and sucked SM's penis, one of which was the subject of count 15. On at least one occasion, Mr Coombs also made SM suck Mr Coombs' penis until he ejaculated. Such an occasion was the subject of count 16.
(c)During and from 1988, Mr Coombs then turned his attention to BM who by then was aged 12 or 13. In 1988, Mr Coombs regularly performed oral sex on BM at the house in Kewdale, and on one occasion at the business premises in Welshpool. That conduct was the subject of counts 6 and 7.
(d)Mr Coombs then told BM that he wanted to try something different, and told BM to give Mr Coombs anal sex (count 8). After that occurred, Mr Coombs sat on top of BM and ejaculated on him.
(e)Count 10 occurred after BM had asked Mr Coombs for money to go to the Skyshow on Australia Day in 1989. Mr Coombs told BM that he wanted to try something different. He penetrated BM's anus with his penis, pushing it in and out until he ejaculated. That was excruciatingly painful for BM, who, afterwards, noticed spots of blood when going to the toilet.
(f)Approximately six months later, Mr Coombs again penetrated BM's anus, but BM screamed and said it hurt too much, following which Mr Coombs stopped.[8] This constituted count 11.
[8] ts 942 - 943.
Sentencing remarks
The sentencing judge identified a number of aggravating features of the offending of both appellants:
1.Both appellants groomed the boys for increasingly serious sexual conduct.
2.Their offending involved serious breaches of trust of the boys; Mr Coombs was also SM's employer. Further, the offending involved a breach of the trust that the boys' mother had placed in allowing her sons to stay at the appellants' house.
3.While no violence was involved, both appellants normalised the sexual conduct and made the boys comply voluntarily. That would inevitably have led the boys to feel shame, embarrassment and confusion.
4.The victim impact statements provided by BM and SM indicate that the offending by the appellants has had a devastating effect on both of their lives. They have spent the last 30 years trying to deal with their feelings of shame and embarrassment, the emotional turmoil, and the anxiety and depression that has arisen as a consequence. They have also suffered a financial burden from the need for professional counselling.[9]
5.The charges were representative. While the appellants are not to be sentenced for uncharged conduct, the conduct the subject of the charges is not to be viewed as isolated offending.
6.Both appellants committed offences over several years against two children.[10]
[9] ts 943 - 944.
[10] ts 949 - 950.
The sentencing judge identified the following mitigating factors in relation to Mr Mills:
(a)Mr Mills was 76 at the time of sentencing.
(b)Mr Mills had a number of health problems including rheumatoid arthritis that had caused some deformation of his hands. He is blind in his right eye.
(c)The judge found that it would be 'a bit harder for [him] in prison compared to someone without the medical conditions', but there was no indication that the medical conditions could not be appropriately cared for in prison'.[11]
(d)He had no prior convictions and had led a relatively useful life.
(e)Given his advanced age and his impending term of imprisonment, the risk of reoffending was low.
(f)The fact that in the decades since this offending took place there have not been any further offences demonstrated that there had been some rehabilitation.[12]
[11] ts 947.
[12] ts 948.
The sentencing judge identified the following mitigating factors in relation to Mr Coombs:
(a)He was 75 years old at the time of sentencing.
(b)Mr Coombs had some medical conditions, including diagnosed glaucoma; hypercholesterolaemia and previous hernia repair.[13] However, there was no indication that the medical conditions could not be adequately managed in custody.
(c)His age and health would make time in custody 'a bit harder' than for a young man.
(d)He has a steady record of employment or running a business.
(e)Given his advanced age and the prospect of a lengthy term of imprisonment, the risk of reoffending is very much reduced, but could not be entirely discounted.
(f)The fact that there has been no more offending in the past twenty years indicates a degree of rehabilitation.[14]
[13] Reflecting what was said in the pre‑sentence report at page 3.
[14] ts 948.
Her Honour then imposed the sentences set out earlier in these reasons.[15]
[15] See [10] - [13].
It is convenient to begin with some general principles applicable to sentencing appeals and to sentencing for sexual offences, before turning to Mr Coombs' appeal.
Sentencing appeals: general principles
Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error usually involves 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 the sentencing discretion differently.
The first limb of the totality principle requires the total effective sentence to be a just and appropriate reflection of the total criminality involved in all the relevant offences, viewed in their entirety and having regard to the circumstances of the case, including the offender's personal circumstances.[16] The second limb requires that a sentence not be 'crushing': that is, it should not destroy reasonable expectation of useful life after release from custody.[17]
[16] Roffey v The State of Western Australia [2007] WASCA 246 [24].
[17] Roffey [25].
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 in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[18] Similar considerations apply to an assessment of whether multiple sentences for a number of offences infringe the first limb of the totality principle.[19]
[18] Chan v The Queen (1989) 38 A Crim R 337, 342.
[19] See, for example, R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [131] (Buss JA).
The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.[20] 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.[21] What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.[22]
[20] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54].
[21] The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [59].
[22] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [41].
The High Court has recently reiterated the need to ensure that sentences imposed in previous cases are not taken as defining the sentencing range so as to conclude that because the sentence imposed in the instant case exceeds the sentences imposed in other cases, the sentence under consideration is therefore beyond the range of available sentences.[23]
[23] The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131 [24].
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 may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence 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 excessive.[24]
[24] Giglia v The State of Western Australia [2010] WASCA 9 [40].
Appeals against sentence: sexual offences
Because of the enormous range of conduct which can come within the description of sexual offences, and the great variation in the personal circumstances of the offenders, there is no tariff for sexual offences.[25] Where the challenge is to the total effective sentence rather than any individual sentence, it remains appropriate to consider other comparable cases to ensure broad consistency and avoid sentencing becoming idiosyncratic and arbitrary.[26]
[25] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3].
[26] Akizuki [68] - [69]; GHK v The State of Western Australia [2014] WASCA 19 [16], [122].
As we have said, both appellants were convicted of offences under the now repealed provisions of the Code. The same conduct would now attract greater maximum penalties. In considering sentences customarily imposed, sentences imposed under a regime with different maximum penalties cannot be directly compared.[27] Nevertheless, contemporary understanding of the seriousness of the conduct involved is appropriately brought to bear in the sentencing exercise.[28]
[27] Hughes v The State of Western Australia [2014] WASCA 78 [4].
[28] EXF v The State of Western Australia [2015] WASCA 118 [69].
The primary sentencing considerations for offences of this kind are punishment of the offender, specific and general deterrence, and the protection of vulnerable children; reduced weight is given to matters referable to the offender personally.[29]
[29] RDC v The State of Western Australia [2012] WASCA 16 [22]; The State of Western Australia v Prince [2011] WASCA 22 [18].
In 2012, Buss JA observed (McLure P & Mazza JA agreeing) that in recent years there had been a 'firming up' of sentences imposed for sexual offences against children, especially cases involving intra‑familial sexual abuse.[30]
[30] RDC [26].
In VIM v The State of Western Australia,[31] the court explained the insidious and enduring effects of offending of this kind on children:
The effects to which we have referred are particularly evident in cases where sexual offending against the child has been frequent and/or has occurred over a long period. It hardly needs to be said that all sexual offending against a child is reprehensible. However, where there is an isolated occurrence, then, depending upon the circumstances, it may well be that, with support, a child will be able to overcome the experience, in the way that other adverse events can be largely overcome. The difference in cases of prolonged offending against a child is that the whole of the victim's childhood and potential for normal development is taken from him or her. When one comes to consider totality considerations, then, a relevant factor is that, as the amount of offending increases, so the likelihood of very significant harm to the victim or victims of the offending is dramatically increased. In the majority of such cases, cumulation of sentences is therefore to be expected, to reflect the increasing severity of effect upon the victim; as well as to reflect the fact that the offender has not simply given way to an impulse on an occasion, but has chosen repeatedly to commit serious offences.
Cumulation of sentence is also to be expected where there is more than one victim. That is consistent with patterns of sentencing in relation to other types of offences. In such cases, we note, however, the frequently cited observation that totality is of marginal importance 'particularly where each victim is aware of the offending conduct perpetrated on the other' (DeLuce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996, per Ipp J). One can imagine that there will be cases in which one child's awareness of the offending against another will be of significance (eg, where, as is not unusual in such cases, there is particular deviance, or violence in order to dominate more than one child at a time, or where an older child has the additional burden of feeling himself or herself helpless to protect the younger). However, it is difficult to regard such awareness, or lack of it, as necessarily making one case more or less serious than another, since where each child believes that he or she is the only victim, there may be an increased sense of isolation and shame felt by each.
[31] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [294] - [295].
Advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age.[32]
[32] ERA v The State of Western Australia [2013] WASCA 163 [87] and cases there cited.
However, whether and, if so, to what extent leniency should be given to an offender of advanced age depends on all the facts and circumstances of the particular case. Age is only one factor in the sentencing process. Advanced age cannot be a justification for a sentence which is not fairly proportionate to the offence or otherwise is inappropriate.[33] An offence may be so serious that humanitarian considerations cannot be accommodated.[34]
[33] ERA [88]; Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [35].
[34] RNN v The State of Western Australia [2010] WASCA 26 [64].
We turn to Mr Coombs' appeal.
Mr Coombs' ground of appeal
Mr Coombs appeals on the ground that the sentencing judge erred in imposing a total effective sentence that infringed both limbs of the totality principle.
Mr Coombs' submissions
Mr Coombs' submissions emphasise the long passage of time between when the offences were committed and the time of sentencing, and that Mr Coombs has not committed any offences since about 1991.[35] Mr Coombs also emphasises his age and his health problems.[36] In support of his contention that the sentences imposed on him breached both limbs of the totality principle, Mr Coombs relies on McKenna v The State of Western Australia;[37] Hughes and HFM v The State of Western Australia.[38]
[35] Mr Coombs' submissions [16] - [17]; appeal ts 9 ‑ 11.
[36] Appeal ts 14 ‑ 15.
[37] McKenna v The State of Western Australia [2014] WASCA 201.
[38] HFM v The State of Western Australia [2012] WASCA 217.
The disposition of Mr Coombs' appeal
We begin with the matters emphasised by counsel for Mr Coombs. It is true that 25 years or more had passed since these offences were committed and that, since about 1991, Mr Coombs has not committed any further offences. As the sentencing judge recognised, that is relevant to the risk of reoffending. Nevertheless, it could not be said that it demonstrated that Mr Coombs was rehabilitated beyond the limited extent referred to by her Honour. He continued to deny the offences and had not engaged in any programme to deal with his sexual interest in young boys.
The long passage of time did not diminish the significance of general deterrence as a sentencing consideration. Although made in the context of intra‑familial offending, the observations of Mazza JA, with whom McLure P and Buss JA agreed, in The State of Western Australia v FJG[39] apply here:
General deterrence remained a very important sentencing consideration in this case. It is not uncommon in cases of serious intra-familial sexual offending for it to remain a secret for a long time. Often the offenders have gone on with their lives in a way which has not adversely affected them. Frequently for the victims, the story is altogether different. Those who offend in this way must realise that their wrongdoing can lead to long terms of imprisonment even when they are old and believe that what was in the past will stay there.
[39] The State of Western Australia v FJG [2012] WASCA 206 [71]; applied in NHT v The State of Western Australia [2016] WASCA 167 [55].
Given that Mr Coombs was 75 years old when he was sentenced, he will be into his 80s by the time he is released from prison. On the other hand, notwithstanding that he committed these offences while he was in his 40s, he has been able to enjoy life in the community from then until his mid‑70s. In those years, his victims carried the burden of what Mr Coombs had done to them.
Mr Coombs had some health problems when he came to be sentenced. He had been diagnosed with glaucoma, hypercholesterolaemia, and had previously undergone a hernia repair. As his counsel acknowledged before the sentencing judge,[40] for a man of his age he was in quite good health. Certainly, the sentencing judge was correct to observe that there was nothing to indicate that Mr Coombs' medical conditions could not be adequately managed in custody. Further, there was nothing to suggest that his medical conditions had a negative impact on his life expectancy.
[40] ts 931.
In these circumstances, Mr Coombs' age and health could only provide quite limited mitigation of his serious offending.
Mr Coombs relies on three cases in support of his contention that his total effective sentence infringed both limbs of the totality principle. Three cases is an inadequate foundation for discerning or identifying patterns of sentences customarily imposed. In any event, as we will explain, the circumstances of the offending or offenders (or both) in those cases are significantly different from the present case.
The sentence in McKenna was imposed in the circumstance that the offender was already serving a total term of imprisonment of 13 years and 1 month. The offender's 9‑year sentence the subject of the appeal had been substantially moderated to take account of the totality principle. Consequently, it does not assist in consideration of the present case.
In HFM, the offender had committed 10 offences against his son's stepdaughter, who was aged between 5 and 12. His appeal against a total effective sentence of 6 years was upheld, and he was resentenced to a term of 4 years immediate imprisonment. HFM's offences were less serious than those of Mr Coombs. HFM entered a fast‑track plea of guilty and was remorseful for, and bewildered by, his behaviour. Mr Coombs pleaded not guilty and exhibited no remorse. The counts in HFM were not representative, and were confined to five discrete incidents. HFM's conduct was seen to be impulsive rather than premeditated. By contrast, Mr Coombs groomed his victims with a view to committing sexual offences against them.
In Hughes, this court, by majority, upheld an appeal against a sentence of 8 years, and resentenced the offender to a term of 5 years. The offender in Hughes had significantly more serious health problems than Mr Coombs. He had Parkinson's disease, coeliac disease, prostate cancer and depression. His health problems reduced his life expectancy.
The respondent also referred to this court's recent decision in NHT. This appeal against a total effective sentence of 8 years 9 months' imprisonment for seven sexual offences committed between 1977 and 1982 against the offender's adopted daughter, then aged 8 ‑ 12 years old, and one offence of indecent dealing against his niece in 2003, was dismissed. The offender was sentenced on the basis that the seven offences of which he was convicted of committing against his adopted daughter were the only offences he committed against her.
In The State of Western Australia v PJW,[41] a State appeal against sentence for nine counts of sexual penetration of a de facto child under the age of 16 years (the maximum penalty for which was 20 years), and two counts of indecent dealing with such a child (maximum penalty 10 years), was upheld. The offences were committed against one victim who was aged 7 or 8. The offender was aged 32 ‑ 33. This court sentenced the offender to a term of imprisonment of 9 years.
[41] The State of Western Australia v PJW [2015] WASCA 113.
In BPR v The State of Western Australia,[42] the offender was convicted after trial of two counts of sexual penetration by cunnilingus (the maximum penalty for which was 20 years) and five counts of indecent dealing against three complainants aged between 11 years 9 months and 14 years 8 months. The offender groomed his victims to make them amenable to his sexual advances. The offender's appeal against the total effective sentence of 8 years 4 months was dismissed.
[42] BPR v The State of Western Australia [2007] WASCA 200.
In M v The State of Western Australia,[43] leave to appeal against a total effective sentence of 7 years 9 months' imprisonment was refused. The offender entered a late plea of guilty to two counts of sexual penetration (the maximum penalty for which was 20 years), one of which was penile and the other fellatio, and five counts of indecent dealing (maximum penalty 10 years), against his de facto daughter who was then aged 14 or 15.
[43] M v The State of Western Australia [2007] WASCA 238.
Cases can be found in which lower sentences have been imposed for what can, we think, fairly be said to be offending that was no less serious than Mr Coombs by an offender with mitigating factors that were not dissimilar to those of Mr Coombs. See, in this regard, cases referred to by McLure P in Hughes.[44] Of these, GGM v The State of Western Australia [No 2][45] and FGC v The State of Western Australia[46] were unsuccessful appeals by the offender. The other two, Bropho and Prince, were successful State appeals in which this court resentenced the offender. In Bropho, considerations of double jeopardy intruded into the resentencing exercise. In any event, it is important to recognise that when this court dismisses an appeal against sentence, and when it allows an appeal and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the available range upon a proper exercise of the sentencing discretion.[47] For example, in our view, it would have been open, upon a proper exercise of the sentencing discretion, to have imposed a substantially higher sentence in Prince. The resentencing in Prince was lenient. The case is of limited utility as a comparator for this case and for other cases. Moreover, while the range of sentences customarily imposed in comparable cases provides a yardstick for ensuring broad consistency, it does not control the question of whether the sentence imposed in the particular circumstances of a case exceeds the range of a sound exercise of the sentencing discretion.[48]
[44] Hughes [12].
[45] GGM v The State of Western Australia [No 2] [2011] WASCA 259.
[46] FGC v The State of Western Australia [2008] WASCA 47; (2008) 183 A Crim R 313.
[47] Neumann v The State of Western Australia [2013] WASCA 70 [30].
[48] Hili v The Queen [54], The Queen v Kilic [22], [24].
When account is taken of all the circumstances of Mr Coombs' offending, and the varying circumstances of the other reasonable comparable cases, including in each case the maximum penalties, the sentence imposed on Mr Coombs is broadly consistent with the sentences imposed in those cases.
Mr Coombs' offending had many serious elements:
1.His offending involved preying upon two vulnerable boys. He took advantage of the particular vulnerability of these boys arising from their dysfunctional situation at home.
2.The offending involved a substantial breach of trust. Mr Coombs was SM's employer. The victims' mother trusted Mr Coombs, as well as Mr Mills, in permitting the boys to stay with them.
3.Mr Coombs groomed the boys for increasingly serious sexual conduct.
4.Mr Coombs offended against two different boys, over several years. He engaged in a variety of forms of penetration. He sucked SM's penis to the point of ejaculation. He also made SM suck Mr Coombs' penis to ejaculation. Mr Coombs sucked BM's penis to ejaculation. He induced BM to insert his penis into Mr Coombs' anus. Mr Coombs penetrated BM's anus.
5.Mr Coombs committed nine offences, four of which had a maximum sentence of 14 years' imprisonment.
6.While no violence was involved, Mr Coombs successfully normalised the sexual conduct so as to make the boys comply voluntarily.
7.The victim impact statements eloquently express the devastating and enduring effects of Mr Coombs' offending.
As his offences were representative, his conduct in committing these offences was not isolated or an aberration. Apart from his age, there were few mitigating factors. Mr Coombs did not plead guilty, and he expressed no remorse for what he did.
In these circumstances, we are not persuaded that the total effective sentence of 9 years' immediate imprisonment imposed on Mr Coombs fell outside the range of an appropriate exercise of the sentencing discretion.
We turn to Mr Mills' appeal.
Mr Mills' submissions
Mr Mills' submissions focus on the question of whether the total effective sentence infringed the first limb of the totality principle. In support of his contention that it did, he relied on a number of cases, primarily Prince, Bropho, Schriever v The State of Western Australia,[49] L v The State of Western Australia,[50] and R v Avery.[51]
[49] Schriever v The State of Western Australia [2008] WASCA 133.
[50] L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135.
[51] R v Avery [2002] WASCA 136.
The disposition of Mr Mills' appeal
None of the cases relied on by Mr Mills, individually or considered together, support a conclusion that the sentence imposed on him infringed the first limb of the totality principle.
The fact that in Prince the offender was sentenced to a total effective sentence of 8 years for 17 counts of a sexual nature against his granddaughter does not assist the appellant. The offending in Prince was, undoubtedly, significantly more serious than Mr Mills' offending. The sentence in Prince was markedly more than the sentence imposed on Mr Mills. In any event, we repeat our observations at [52] about Prince. Further, as we have said, when this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences an offender, the court's decision on the sentencing outcome does not in itself fix the upper or lower limits of the sentence range.
Bropho was a successful State appeal. In that case, the double jeopardy principle applied when the offender was resentenced. In the circumstances, Bropho does not provide any assistance as a comparator.
Nor, in our view, does Schriever. In that case, the offender pleaded guilty and voluntarily disclosed an offence which would otherwise not have been discovered. He was aged between 23 and 26 at the time of the offending.
In L, the offender was sentenced on appeal to a total effective sentence of 24 months' imprisonment for six counts of indecent dealing with a child under the age of 13. There were two victims. In that case, the offender pleaded guilty at an early stage. None of his offences involved an actual touching of the children. The offending occurred on two occasions about a week apart. His offending was so significantly less serious than that of Mr Mills that the case is not a useful comparator.
R v Avery[52] was also a State appeal at a time when the double jeopardy principle applied. The offender had many mitigating factors that do not apply to Mr Mills. The offender was 20 years old. He had pleaded guilty and demonstrated remorse. The victim had consented to the sexual activity and actively participated in it. The offender had accepted responsibility and expressed empathy for the victim. By contrast, Mr Mills refused to accept responsibility and expressed no remorse for his offending, and continues to deny his offending.
[52] R v Avery [2002] WASCA 136.
The serious elements of Mr Mills' offending were identified by the sentencing judge. Mr Mills took advantage of the vulnerability of a young boy from a dysfunctional home. He breached BM's mother's trust in letting BM stay overnight. He groomed BM with outings and treats. He offended against BM on a number of occasions, including by making BM suck his penis. His offending has had devastating consequences for BM.
Being representative, his offences were not isolated or an aberration. Apart from his age, there was very little in the way of mitigation. There was no remorse. He did not have the mitigatory benefit of a plea of guilty.
In the circumstances, we are not persuaded that the total effective sentence imposed on Mr Mills is unreasonable or plainly unjust so as to reveal implied error in relation to the first limb of the totality principle. For completeness, we record that we are also of that opinion in relation to the second limb of the totality principle.
To the extent that the sentence for count 12 is high, the severity of the sentence must be seen in light of the total effective sentence imposed for Mr Mills' offending as a whole.[53] The real question is whether the total effective sentence is excessive. For the reasons we have given, we are not persuaded that it is. We are not persuaded that this sentence, or any other sentence for an individual count, was manifestly excessive.
[53] Giglia [40].
Conclusion
For the reasons we have given, while we would grant leave to appeal in each appeal, we would dismiss both appeals.
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