Morley v The Queen
[2001] WASCA 49
•28 FEBRUARY 2001
MORLEY -v- THE QUEEN [2001] WASCA 49
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 49 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:252/1999 | 6 FEBRUARY 2001 | |
| Coram: | KENNEDY J ANDERSON J STEIN AJ | 28/02/01 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence of 17 years reduced to 13 years | ||
| PDF Version |
| Parties: | BRYAN CEDRIC MORLEY THE QUEEN |
Catchwords: | Criminal law Sentence Series of sexual assaults over 13 years against two stepdaughters and a daughter under 16 years of age Plea of guilty Remorse Sentencing patterns in comparable cases Sentence of 17 years reduced on appeal to 13 years |
Legislation: | Nil |
Case References: | D v The Queen [2000] WASCA 137 Griffiths (1977) 137 CLR 293 Little v The Queen [2000] WASCA 87 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Norbis v Norbis (1986) 161 CLR 513 Pearce v The Queen (1998) 72 ALJR 1416 Podirsky v The Queen (1990) 3 WAR 128 Postiglione v The Queen (1997) 189 CLR 295 R v Ginder (1987)23 A Crim R 1 R v Griffiths [1999] WASCA 23 R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993 R v Podirsky (1989) 43 A Crim R 404 R v Tait (1979) 46 FLR 386 R v Tiso (1990) 12 Cr App Rep (S) 122 Woods v The Queen (1994) 14 WAR 341 De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 E v The Queen, unreported; CCA SCt of WA; Library No 960032; 23 January 1996 Fletcher v The Queen, unreported; CCA SCt of WA; Library No 970125; 27 March 1997 H v The Queen, unreported; CCA SCt of WA; Library No 970371; 30 July 1997 Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970385; 8 August 1997 Jarvis v The Queen (1993) 20 WAR 201 Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996 R v CW [2000] WASCA 81 R v Richards [1999] WASCA 105 Trescuri v The Queen [1999] WASCA 172 Wagenaar v The Queen [2000] WASCA 325 Wicks v The Queen (1989) 3 WAR 372 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MORLEY -v- THE QUEEN [2001] WASCA 49 CORAM : KENNEDY J
- ANDERSON J
STEIN AJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Series of sexual assaults over 13 years against two stepdaughters and a daughter under 16 years of age - Plea of guilty - Remorse - Sentencing patterns in comparable cases - Sentence of 17 years reduced on appeal to 13 years
Legislation:
Nil
Result:
Appeal allowed
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Sentenced of 17 years reduced to 13 years
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : Mr R E Cock QC & Ms J A Girdham
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
D v The Queen [2000] WASCA 137
Griffiths (1977) 137 CLR 293
Little v The Queen [2000] WASCA 87
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Norbis v Norbis (1986) 161 CLR 513
Pearce v The Queen (1998) 72 ALJR 1416
Podirsky v The Queen (1990) 3 WAR 128
Postiglione v The Queen (1997) 189 CLR 295
R v Ginder (1987)23 A Crim R 1
R v Griffiths [1999] WASCA 23
R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993
R v Podirsky (1989) 43 A Crim R 404
R v Tait (1979) 46 FLR 386
R v Tiso (1990) 12 Cr App Rep (S) 122
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
E v The Queen, unreported; CCA SCt of WA; Library No 960032; 23 January 1996
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Fletcher v The Queen, unreported; CCA SCt of WA; Library No 970125; 27 March 1997
H v The Queen, unreported; CCA SCt of WA; Library No 970371; 30 July 1997
Hogermeer v The Queen, unreported; CCA SCt of WA; Library No 970385; 8 August 1997
Jarvis v The Queen (1993) 20 WAR 201
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
R v CW [2000] WASCA 81
R v Richards [1999] WASCA 105
Trescuri v The Queen [1999] WASCA 172
Wagenaar v The Queen [2000] WASCA 325
Wicks v The Queen (1989) 3 WAR 372
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1 JUDGMENT OF THE COURT: On 10 August 1999, the applicant pleaded guilty under the fast track system in the Court of Petty Sessions at Fremantle to 13 charges of sexual offences against three children. He pleaded not guilty to a 14th charge. He was committed to the October sittings of this Court and appeared for trial before McKechnie J on 5 October 1999 when, by his counsel, he requested an adjournment on the basis that it was likely that he would change his plea to the 14th charge.
2 Upon that being confirmed, a fresh indictment was prepared and on 2 November 1999 the applicant came before Malcolm CJ for arraignment on all 14 charges, to which he pleaded guilty. After hearing his plea in mitigation, the learned Chief Justice adjourned the matter and on 30 November 1999 he sentenced the applicant to 17 years' imprisonment and made a parole eligibility order. The applicant seeks leave to appeal against the severity of that sentence.
3 The charges were of a series of sexual offences against the applicant's daughter and two stepdaughters occurring over a 13-year period between 1976 and 1989. Each complainant was approximately nine years of age when the abuse of her began. The charges reflect a persistent course of conduct involving fondling, fellatio, cunnilingus and full sexual intercourse. The victim impact statements and the pre-sentence material indicate that the applicant's conduct has had a serious effect on the three complainants.
4 The grounds of appeal against sentence are three in number as follows:
"1. The Learned Sentencing Judge erred in law by adopting a sentence starting point well above the starting point normally adopted in cases of this kind.
2. The Learned Sentencing Judge misapplied the totality principle in that he failed to have regard to the principle that the aggregate sentence should be proportionate to the degree of criminality involved and the age of the applicant.
3. The Learned Sentencing Judge failed to give sufficient weight to the applicant's co-operation with the police, remorse and personal background."
5 As the grounds of appeal were developed in argument, they came down really to the complaint that the aggregate sentence of 17 years was
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- manifestly excessive in the circumstances. No error of reasoning or principle was identified in the sentencing remarks and it was not contended that the Chief Justice had misapprehended the facts or that he had actually overlooked any relevant matter of mitigatory significance.
6 The question for this Court is whether, in all the circumstances of the case, the aggregate sentence of 17 years' imprisonment ought to be reduced.
7 It is as well to restate some established principles.
General principles
8 A court of criminal appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. An appellate court may interfere only if it is shown that the sentencing Judge was in error in acting on a wrong principle, or in misunderstanding, or in wrongly assessing some salient feature of the evidence: Lowndes v The Queen (1999) 195 CLR 665. The error may appear in what the sentencing Judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error: R v Tait (1979) 46 FLR 386 at 387 - 388 per Brennan, Deane and Gallop JJ. Every case must be given individual consideration for the purpose of arriving at a proper sentence, having regard for the particular circumstances of that case. At the same time, and so far as is reasonably possible, there should be consistency in sentencing. Sentencing disparity should be avoided, or at least minimised. Like cases should be treated alike: Norbis v Norbis (1986) 161 CLR 513, 519 per Mason and Deane JJ; Griffiths (1977) 137 CLR 293 per Murphy J at 330; Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336 - 7. And see Fox & Freiberg "Sentencing" (2nd ed) par 13.103. As Kirby J said in Postiglione (loc cit) "consistency in punishment is a reflection of the notion of equal justice. It is an attribute of any rational and fair system of criminal justice. On the other side of the coin, inconsistency in punishment is regarded as a badge of unfairness which erodes public confidence in the integrity of the administration of justice" (see also Lowe v The Queen (1984) 154 CLR 606 at 610 - 611; D A Thomas "Principles of Sentencing" (2nd ed p 29). However, the variable factors in cases of sexual assault are so numerous that it is difficult to identify a range, bracket, normal level or pattern of sentence for the particular offence which is under consideration. It was in this context that Burt CJ said in R v Ginder (1987)23 A Crim R 1 at 4 that " … a tariff for
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- offences [of this type] will remain as elusive as ever". Nevertheless, that the so-called 'tariff' may be elusive does not absolve a court of criminal appeal from the responsibility of reviewing sentences to eliminate inconsistency so far as that is possible. In so doing, however, a court of criminal appeal must fully recognise the discretionary character of the sentencing function and must accord to sentencing Judges "a wide measure of latitude": Postiglione per Kirby J at 336. As the High Court said in Lowndes (supra) at 672 "the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice". The corollary of this is that the courts of criminal appeal will not tinker with sentences.
Background
9 The applicant married the mother of the three complainants in January 1976. She already had the complainants T and L by a previous marriage. There was also an elder daughter and a son, but neither of those two children have made complaints against the applicant. The youngest complainant, S, is the applicant's natural daughter. She is, of course, the stepsister of T and L.
10 The applicant worked as a handyman until about 10 years ago when he ceased employment to become a full-time carer for his wife who has been in ill-health for many years.
11 All complainants are now adult and at the time of sentencing T was 32 years of age, L was 29 and S was 22. According to the pre-sentence material made available to the sentencing court, and not disputed by the applicant, it appears that the offences were disclosed quite recently when one the complainants was finding it very difficult to be protective towards her own children when in the applicant's company and all three complainants had become concerned for the welfare of other children when it appeared to them that the applicant had started going for "long walks" in the vicinity of primary schools near where he was then living. Although it is by no means clear from the material which we have before us, it is possible to get the impression that it was in discussing these matters that the complainants first came to realise the extent to which all three of them had been abused by the applicant as children. At all events, it appears that on an occasion in June 1999, the complainants together confronted the applicant and the applicant made admissions to his wife, and then was driven to a police station by one of the complainants and surrendered himself to the police. This disclosure devastated his wife. Apparently, he had told lies to her as to why the girls had left home in
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- order to conceal from her the real reason for their departure. Recorded interviews were conducted during which the applicant made general admissions covering most of the offending complained of by the complainants.
12 At the time of sentencing, divorce proceedings were on foot and the applicant had not lived in the matrimonial home for some four months.
Facts relating to offences
13 The following is a brief account of the facts out of which the counts on the indictment arise. The summary is taken from the depositions tendered to the sentencing court, the pre-sentence reports, which were not challenged, and the sentencing remarks.
14 Shortly before the applicant married T's mother in January 1976, he commenced to molest T, who was then of the age of eight. Her first memories of the applicant's abuse of her were of waking up in her bed with the applicant "rubbing his hands all over my body including my vagina; he kissed me in all the same places as he was rubbing". According to her deposition, the applicant told her "if you tell anybody there will be big trouble". The applicant conducted himself towards T in this way regularly thereafter and this progressed to placing his penis in her mouth and his fingers in her vagina. The conduct continued as the family moved from place to place about Australia, including during caravan journeys from one State to another. Although not able to be at all specific as to the regularity with which the applicant would deal with her in that manner, T put it at about once a week and at least every two weeks until about 1983 when the complainant turned 16. Almost as soon as she did turn 16, T went to live with her own father in order to get away from the applicant. She never told her mother or siblings about the applicant's abuse of her and did not know that the complainant L was also being abused by him. She recalls that before she left home there was at least one attempt at full sexual intercourse after an episode during which the applicant encouraged T and three or four of her teenage friends to watch "several blue movies in the lounge room involving animals". Later that night after T had gone to sleep in her own bed, she woke up in the applicant's bed naked "and Brian had his tongue inside my vagina". She recalls that after successfully resisting the applicant's attempt to insert his penis into her vagina "I got up and went back to my own bed and cried myself to sleep".
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15 The applicant commenced to molest the complainant L when she was of the age of nine in about 1979. At this time, unknown to L, the applicant had been abusing T for about three years. The applicant's method was to wait until the complainant was having a bath and go into the bathroom under the pretext of wishing to speak to her. The conversations which he then initiated usually had a sexual theme. This conduct progressed to physical contact. As L puts it in her deposition, "I remember him being very playful both physically and verbally. Things like tickling and that". Intercourse occurred for the first time when L was about 12. The family was moving house from a town in New South Wales to Canberra and the complainant found herself alone with the applicant in the partly-furnished house from which they were moving. The applicant arranged for the two of them to spend the night together in that house. At that stage, there was only one bed left in the house, which was the parents' bed. The applicant got L into the bed, undressed himself and her and commenced to fondle her and had prolonged sexual intercourse with her.
16 Thereafter, he had intercourse with L frequently in various circumstances and at various places. She was unable to estimate with any precision the number of occasions on which the applicant had intercourse with her, other than to say it was "over a hundred times". One of the applicant's practices was to take L out to country areas on one pretext or another or for one purpose or another, drive to a remote spot, spread a blanket on the ground and require the complainant to submit to full sexual intercourse. No prophylactic measures were ever taken. By one means or another, he would impress upon her that there should be no disclosure of his behaviour, otherwise there would be "big trouble". The abuse continued until L left home at the age of 16. After leaving home, she turned to drugs because, as she put it in her victim impact statement, "I was no good to anyone else".
17 The applicant commenced molesting his natural daughter S after the family had moved from New South Wales to Canberra, when S was about eight or nine years of age. She recalls being in year-three at primary school. The applicant would lure her to him by promises that if she came to him in the living room after everyone went to bed, he would give her chocolate. When she did go to him, he would take all her nightclothes off and touch and fondle her. This progressed to requiring S to commit fellatio upon him to ejaculation. She recalls that on at least one occasion he ejaculated into her mouth. There were many occasions when he would perform oral sex upon her and require her to masturbate him.
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18 This conduct finally progressed to full intercourse. The first occasion of which S has a clear recollection was after a visit they both made to her mother in hospital. On returning home, the applicant told S that he was very lonely, got her into his bed and while they were both naked penetrated her vagina from behind with his penis. He persisted even after she said that she did not want him to do it and that it was hurting her. He told her to "relax" and as she put it "he kept going and actually penetrated my vagina … I remember my biggest fear was what would happen if I fell pregnant". The complainant appears to have been about 12 or 13 at the time of this incident. It is the subject of count 14 on the indictment which specifies the date of the offence as "between 1 January 1986 and 31 December 1989" so that the complainant could have been younger. The abuse of S continued until she was 15. In her victim impact statement, she said that "after that I was blamed for his bad moods (because) I wasn't giving him the relief that men needed".
19 At the time these offences occurred, the applicant was between the ages of 35 and 48. He obtained the co-operation of the complainants by exerting his authority and by encouraging in them the belief that his conduct with them was normal (although if it was disclosed there would be trouble) and by manipulating them in other ways. As the Chief Justice remarked in his sentencing reasons, the applicant "took advantage of their age and innocence to corrupt each of them for your own sexual gratification".
Sentencing factors
20 In mitigation of the applicant's conduct, it may be said, although with some qualification, that there was no physical violence or use of force and he did not molest one child in the presence of another. The qualification is that the complainant L remembers that after T had left home, there was a period during which the applicant became physically aggressive towards L. She recalls being hit and slapped by him in fits of anger, although it does not appear from her deposition that this conduct was directly related to, or was part of, the sexual abuse. It can fairly be said that for the most part at any rate, the applicant got his way not by force, but by a process of gradual seduction, combined with mental manipulation, making use of his position in the household to create opportunities for himself. Of course, the very young age of the children at the commencement of his corruption of them made it quite unnecessary to use force.
21 The bad features of the case include the following: each of the complainants was very young (eight or nine years of age) when the first
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- offences against them were committed; the applicant was the stepfather of two of the complainants and the natural father of the third complainant; the totality of the offending occurred over a long period of 13 or 14 years in gross breach of trust; the complainants have been seriously traumatised and remain so; the applicant's conduct has deprived the complainants of a normal childhood; as appears from the victim impact statements and the pre-sentence material, the applicant's conduct has significantly damaged the development of the complainants' personalities and has had a significant impact on their ability to maintain normal relationships with others.
22 It can safely be inferred that the applicant's conduct caused to each of his three victims emotional and psychological trauma which diminished their capacity to lead normal lives.
23 Looked at in the round, it is a very serious case of its kind.
The sentence
24 The learned Chief Justice approached the sentencing task by arriving at sentences which he considered were appropriate for the individual offences. These were as follows:
Count 1 (indecent dealing with a child under 14 years) - Rubbing his hands over T's body, including her vagina and kissing her vagina, T then being about nine: - 3 years' imprisonment.
Count 2 (indecent dealing with a child under 14 years) - touching T's vagina underneath her clothing, she then being aged about nine years: - 2 years' imprisonment.
Count 3 (indecent dealing with a child under 14 years) - kissing and rubbing his hands over T's body, including her breasts and vagina, she then being aged about 10 years: - 3 years' imprisonment.
Count 4 (indecent dealing with a child under 14 years) - on the same occasion, penetrating T's vagina with his fingers: - 2 years' imprisonment.
Count 5 (indecent dealing with a child under 14 years) - on the same occasion, placing his penis in T's mouth: - 3 years' imprisonment.
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- Count 6 (indecent dealing with a child under 14 years) - touching T on her vagina underneath her clothing, she then being aged 10 or 11: - 2 years' imprisonment.
Count 7 (sexual assault) - full sexual intercourse with the complainant L, she then being of the age of about 16: -6 years' imprisonment.
Count 8 (sexual assault) - full sexual intercourse with the complainant L, she then being aged about 16 years: - 6 years' imprisonment.
Count 9 (aggravated sexual assault) - requiring the complainant S to commit fellatio upon him and ejaculating into her mouth, she then being between the ages of nine and 12: - 4 years' imprisonment.
Count 10 (aggravated sexual assault) - pushing S's head down onto his erect penis and requiring her to commit fellatio on him, she then being aged between nine and 12: - 4 years' imprisonment.
Count 11 (aggravated sexual assault) - placing his penis into the complainant's mouth, forcing her to commit fellatio upon him, she then being aged between nine and 12 years: - 4 years' imprisonment.
Count 12 (aggravated sexual assault) - committing cunnilingus on the complainant S, she then being aged between nine and 12: - 3 years' imprisonment.
Count 13 (aggravated sexual assault) - placing his erect penis into S's mouth and requiring her to commit fellatio upon him until ejaculation, she then being aged between nine and 12: - 4 years' imprisonment.
Count 14 (incest) - full sexual intercourse with S from behind, she then being between 10 and 13: - 8 years' imprisonment.
25 The maximum penalties prescribed for these offences at the time they were committed were 7 years' imprisonment for each of the offences, save for those charged in counts 7 and 8 (14 years' imprisonment) and count 14 (20 years' imprisonment).
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26 If these sentences had to be served successively, they would come to 54 years. In accordance with the principles stated by the High Court in Pearce v The Queen (1998) 72 ALJR 1416 at 1423 - 1424, his Honour then undertook the task of deciding what aggregate sentence would be proper with respect to the total criminality of the conduct. Having regard to those principles, his Honour said:
"I would reduce the overall sentence to one of 25 years on account of the totality principle and all other factors of mitigation apart from your pleas of guilty."
27 He then further reduced that sentence by 8 years for the pleas of guilty and arrived at an aggregate sentence of 17 years with eligibility for parole.
28 The question for this Court is whether that aggregate sentence manifestly exceeds a just sentence.
29 The aggregate sentence was arrived at as follows. The sentences ranging from 2 to 3 years imposed with respect to counts 1 to 6 were ordered to be served concurrently, thus, producing an aggregate of 3 years for those offences; the sentences of 6 years which were imposed with respect to counts 7 and 8 were ordered to be served concurrently with each other, but cumulatively upon the earlier sentences, thus, producing an aggregate of 9 years' imprisonment; the sentences with respect to counts 9 to 13 ranging from 3 to 4 years were ordered to be served concurrently with each other and with the other sentences imposed. As to count 14, the sentence of 8 years was ordered to be served concurrently with the sentences imposed in respect to counts 9 to 13, but cumulative upon the sentences imposed in respect to the other counts, that is, cumulative upon the aggregate sentence of 9 years imposed with respect to counts 1 to 8, thus producing, in all, 17 years.
The appeal
30 On behalf of the applicant, two main submissions were made in support of the contention that the sentence was manifestly excessive. In the first place, it was said that a number of the individual sentences for the lesser offences of indecent dealing were well above the sentences that would normally be imposed for such conduct. Counsel for the applicant referred us to a number of cases in which sentences for indecent dealing involving touching and rubbing of the genitalia of children were between 12 and 18 months. There are indeed a number of such cases, the most
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- recent of which are R v Lippiatt, unreported; CCA SCt of WA; Library No 980065; 17 February 1998; R v Griffiths [1999] WASCA 23 and D v The Queen [2000] WASCA 137.
31 Counsel also submitted that sentences for indecent dealing or sexual penetration involving digital penetration of the vagina commonly attract sentences of 2 to 3 years. Once again, there are a number of cases in which that range of sentence was considered appropriate, the most recent of which is Little v The Queen [2000] WASCA 87.
32 We would accept that there could be some criticism of some of the individual sentences in this case, but in the end this Court is concerned with the totality of the sentence for a very prolonged period of abuse of three young girls. Having regard for the structuring that was undertaken to bring down the cumulative total from 54 years to an aggregate of 17 years, it seems futile to examine each of the nominal sentences making up the 54 years.
33 Secondly, it was submitted that, difficult as it may be to identify a pattern of sentencing for this type of offence, the aggregate sentence imposed in this case is so far above the range of sentences indicated by comparable cases as to require the intervention of this Court. We have come to the conclusion that we must accept this submission.
34 Our attention was not drawn to any case in which a sentencing court has arrived at an aggregate sentence in this kind of case by taking a starting-point of 25 years after mitigatory features have been taken into account, or in which an overall sentence of 17 years has been imposed in an uncontested case of intra-family sexual abuse not involving physical cruelty, pregnancy or the transmission of disease.
35 For a number of years, the facts in the Podirsky cases (R v Podirsky (1989) 43 A Crim R 404; Podirsky v The Queen (1990) 3 WAR 128) have been regarded by sentencing courts in this State as exemplifying the worst category of this type of offending. We do not relate those facts in detail. They are, of course, set out in the reports of the cases and are also set out in Woods v The Queen (1994) 14 WAR 341 at 352 - 354. For present purposes, a summary will do. The offending involved systematic and ever-increasing sexual approaches and demands upon two separate stepdaughters. In the case of one stepdaughter, the conduct commenced when she was eight or nine and continued until she was 15. Force was used and the offender consistently ejaculated in the girl, with the result that she became pregnant and had an abortion before she had turned
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- 15 years of age. Sexual intercourse with the other stepdaughter commenced with a callous rape when the child was 14 years of age and living alone with the offender and when she was completely dependent on him. There was evidence that he had, in fact, made systematic and ever-increasing sexual approaches and demands on her from when she was approximately nine years of age. Intercourse, once started when she was 14, continued until she was 16 or 17. He exposed her to adult sexual practices and took no precautions to prevent her from becoming pregnant. She had one abortion before she attained 15 years of age and another shortly after her 15th birthday. In the following year, she became pregnant again and that pregnancy went full term. The complainant had to go through the trauma of giving her child up for adoption following the third pregnancy. These were contested cases; the complainants were put through lengthy, highly unpleasant jury trials and the offender demonstrated no remorse and made no admissions. The aggregate sentence was 18 years.
36 A case which is near to Podirsky, but perhaps not quite as bad, is the case of R v Petchell, unreported; CCA SCt of WA; Library No 930346; 16 June 1993. There was a long history of intimidation and forced non-consensual sexual intercourse by a father upon his stepdaughter between the ages of 12 and 17 involving two pregnancies, one of which carried to full term and the other of which was terminated. There was cruelty, physical aggression and threats. There was a total domination of the child by the stepfather in which, for the most part, the natural mother sided with the stepfather. This was a contested case. There was no plea of guilty and no remorse. The original sentence was 10 years' imprisonment, increased to 12 years after a Crown appeal.
37 Accepting that comparisons in this kind of case are largely unhelpful, the two cases referred to can be seen to be significantly worse than this case in terms of their objective criminality and consequences. The feature which may perhaps distinguish this case from those cases is that in this case there were three young girls involved over a total period of some 13 years, although it has to be said that the longest period during which any one child was abused would appear to have been about seven years, if that is thought to be of any significance. That there were three children is an aggravating feature. On the other hand, there were aspects of the offender's conduct in Podirsky and Petchell which were very bad and which are not present in this case.
38 An English case which is, broadly speaking, comparable to Podirsky and Petchell is R v Tiso (1990) 12 Cr App Rep (S) 122. It was a case of
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- intra-familial sexual abuse, involving three young complainants. We include it only to show that there is no great disparity between sentencing in England and Western Australia for this kind of offending. Taylor LJ, speaking for the Court of Appeal, recited the facts as follows:
"The appellant is the father of four sons and one daughter by his first marriage. Three of those children were the victims of systematic child abuse practised by the appellant over a period of some 12 years between 1967 and 1979. One of the three was a daughter, now aged 26. The other two abused children were twin sons, now aged 28.
All the children of this family lived with the appellant and their mother and the sexual abuse occurred in the matrimonial home. At first, the appellant turned his attention to the elder of the two abused twin boys. That was in about 1967 when the boy was between six and seven years old. The appellant frequently got the boy to drop his trousers, bend over his bed and then buggered him. From about 1968 or 1969 he also buggered the other twin boy in similar circumstances. There were occasions when the boys were both present when one or other of them was being buggered by their father. Neither of the boys made any complaints to anybody or any real resistance because they were frightened of the appellant. The incidents with those boys occurred with regularity over some 12 years.
So far as the daughter is concerned, when she reached the age of about eight or nine in 1972 the appellant started to abuse her sexually. From 1974 onwards, when she was only 11, sexual intercourse occurred between the appellant and that daughter. She, like her brothers, submitted to this conduct out of fear. The sexual intercourse used to occur on a regular basis whilst the appellant's wife and mother of these children was out of the house. The appellant took no precautions so far as his intercourse with his daughter was concerned, and unhappily in August 1979, when only 15, she gave birth to a son … The appellant was the father of that child, a boy. That pregnancy brought the conduct towards the daughter to an end."
Taylor LJ described the case as "one of the most serious cases of its kind".
39 There was a sentence of 12 years after a plea of guilty.
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40 In this case, after allowing for all matters of mitigation, except for the plea of guilty, the learned Chief Justice arrived at a sentence of 25 years. Putting aside the plea of guilty and the discount that was given for it, the sentence of 25 years was seven years longer than Podirsky's sentence and 13 years longer than Petchell's sentence, albeit that Petchell's sentence doubtless contained a discount for the double jeopardy considerations always present in a Crown appeal. With great respect, we do not consider this disparity can be justified. We would set aside the sentence and substitute a sentence of 13 years' imprisonment, which we would arrive at in the following way.
41 As to counts 1 and 3, we would reduce the sentence from 3 years' imprisonment to 18 months' imprisonment; as to count 6, we would reduce the sentence from 2 years' imprisonment to 12 months' imprisonment; as to count 2, we would reduce the sentence from 2 years' imprisonment to 9 months' imprisonment; as to count 4, we would reduce the sentence from 2 years' imprisonment to 18 months' imprisonment; as to count 5, we would reduce the sentence from 3 years' imprisonment to 18 months' imprisonment. We would order that all of these sentences be served concurrently.
42 As to counts 7 and 8, we would reduce the sentences from 6 years' imprisonment to 4½ years' imprisonment. We would order that these sentences be served concurrently with each other, but cumulatively upon the earlier sentences.
43 As to counts 9 to 13 inclusive, we would not interfere with those sentences. As to count 14, we would reduce the sentence from 8 years' imprisonment to 7 years' imprisonment.
44 The sentences with respect to counts 9 to 13 are to be served concurrently with each other and with the sentences imposed with respect to counts 1 to 8. As to count 14, the sentence of 7 years' imprisonment is to be served cumulatively upon the sentences imposed in respect to the other counts, that is cumulative upon the aggregate sentence of 6 years imposed with respect to counts 1 to 13, thus producing, in all, 13 years. That is a sentence which we consider to be an appropriate total sentence, having regard for the overall criminality involved in the applicant's conduct and after taking into account all factors of mitigation including the plea of guilty.
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