MPD v The State of Western Australia
[2008] WASCA 57
•14 MARCH 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MPD -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 57
CORAM: WHEELER JA
BUSS JA
MILLER JA
HEARD: 21 FEBRUARY 2008
DELIVERED : 14 MARCH 2008
FILE NO/S: CACR 36 of 2007
BETWEEN: MPD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 37 of 2007
BETWEEN :JD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :IND 1324 of 2006
Catchwords:
Criminal law - Sentencing - Sexual offences - Husband and wife committing offences against child under the age of 16 years - Male appellant stepfather of complainant - Female appellant natural mother of complainant - Offences between period April 2002 and December 2003 - Complainant at all times under age of 16 years - Offences including indecent dealing, cunnilingus, digital penetration of the vagina and encouragement of child to engage in sexual behaviour by penetration of her own vagina with fingers - Multiple counts in relation to each appellant - Pleas of guilty - Remorse (greater for female appellant than male appellant) - Whether sentences of 10 years 2 months (male appellant) and 9 years 7 months (female appellant) manifestly excessive - Whether sentencing should have been postponed to facilitate rehabilitation prior to sentencing
Legislation:
Criminal Appeals Act 2004 (WA), s 23(1)(b)
Criminal Code, s 321, s 329
Result:
Appeals dismissed
Category: B
Representation:
CACR 36 of 2007
Counsel:
Appellant: Mr A E Monisse
Respondent: Mr K P Bates
Solicitors:
Appellant: Chris Williams Lawyer
Respondent: Director of Public Prosecutions (WA)
CACR 37 of 2007
Counsel:
Appellant: Mr A E Monisse
Respondent: Mr K P Bates
Solicitors:
Appellant: Chris Williams Lawyer
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
C v The State of Western Australia [2006] WASCA 261
Cameron v The Queen (2002) 209 CLR 339
H v The State of Western Australia [2006] WASCA 53
Jarvis v The Queen (1993) 20 WAR 201
Lawrence v The State of Western Australia [2005] WASCA 14
Mallet v Mallet (1984) 156 CLR 605
Mill v The Queen (1988) 166 CLR 59
Playle v The Queen [2004] WASCA 86
R v Chilvers [2003] WASCA 87
R v G [2001] WASCA 160
R v Petchell (Unreported, WASCA, Library No 930346, 16 June 1993)
S v The Queen [2004] WASCA 113
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Vagh v The State of Western Australia [2007] WASCA 17
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
WHEELER JA: I agree with Miller JA.
BUSS JA: I agree with Miller JA.
MILLER JA: The appellants are husband and wife. The complainant is a female child, born in 1990. She is the natural daughter of the female appellant (JD). Her mother married the male appellant (MPD) when the complainant was approximately 3 years of age. The complainant has two siblings who were the natural children of MPD.
The appellants were indicted on a joint indictment which alleged 16 counts of sexual offences against the complainant. There were 15 counts alleged against MPD and 14 counts alleged against JD. The offences occurred in the family home and at the address of some neighbours who lived close by. A number of counts on the indictment alleged offences by JD and the female neighbour. There were also counts which alleged offences by MPD, JD and both of the neighbours, being husband and wife.
The appellants appeal against the sentences imposed upon them in the District Court at Perth on 14 March 2007. They were respectively sentences of 10 years 2 months, and 9 years 7 months' imprisonment.
There are two grounds of appeal and they are identical in relation to each of the appellants. The first ground is that the sentence (meaning the aggregate sentence) is manifestly excessive, and the second is that the sentencing judge gave insufficient weight to the rehabilitation of the appellants and, in particular, erred by failing to grant the appellants bail pending sentence so that they could complete the final portion of a rehabilitation programme. The grounds of appeal will be further detailed.
The facts
The facts which underlie the 16 counts on the indictment can only be described as horrifying. They involve sexual offences by the de facto father and natural mother of the complainant against her at a time when she was between 12 and 13 years of age. They involve a multiplicity of sexual acts performed by the appellants upon the complainant and include the encouragement of her to engage in sexual acts herself.
The sexual misconduct committed by the appellants was brought to an end because the complainant and the appellants ceased it after a particularly bad sequence of offences involving co‑accused. In a
videorecorded interview made with investigating police officers on 17 January 2006, the complainant said:
A.... I shut everything off ...
Q.All right; and when you say you shut everything off?
A.Basically I locked myself in my room.
Q.Yeah.
A.And said that, nuh I'm not having any part of this sort of thing ...
The complainant left home and went to live with her grandparents. Ultimately, she rang a police officer (whom she regarded as an uncle) and made a complaint about what had occurred. This led to a process of complaint and investigation which culminated in the appellants being charged with the offences the subject of the indictments.
The appellants first offended against the complainant at some time after she had turned 12 years of age. They supplied numerous pornographic materials to her. Those materials included images of an explicit nature. They depicted naked men and women in sexual acts. On 6 August 2002, the complainant took a pornographic photograph to her primary school. She was then in year 7. The photograph was shown to fellow students and the matter came to the attention of the school principal. He wrote to the appellants advising them of the inappropriateness of such material being in the possession of the complainant.
JD later admitted in a record of interview that she commenced showing pornographic material to the complainant when she was 12 years of age. MPD made similar admissions. These facts are the subject of the first count on the indictment, being an allegation that each of the appellants indecently dealt with the complainant (a child who they then knew to be the lineal relative of JD and de facto child of MPD) by showing her pornographic material at a time when she was under the age of 16 years: Criminal Code s 329(4), s 329(10)(a).
Between December 2002 and February 2003, being the annual school holidays for the complainant, and at a time at which she was 12 years of age, the complainant walked past the doorway of the appellants' bedroom. She was asked by MPD whether she wished to watch the appellants engage in sexual intercourse. In her record of interview, the complainant recounted what occurred in the following way:
A.I'm I - - I don't remember. Um, I just remember standing at the bedroom door and he was like saying, um - - I can't recall exactly what he said. It was something about them having sex and if I wanted to see it and at the time I didn't know what to say. Um, I sort of nodded cos I - - I didn't know what to do.
...
A.Um, see, I can't remember exactly. I just - - that's all I remember was them, um, having sex on the bed. That's what I remember. I remembers [sic] being at the bedroom door because I was sort of should I watch here or should I go away sort of thing.
These facts constitute count 2 on the indictment, which is another allegation of indecent dealing, it being alleged that the appellants indecently dealt with the complainant by engaging in a sexual act in her presence; namely, penile/vaginal intercourse and at a time when she was under the age of 16 years: Criminal Code s 329(4), s 329(10)(a).
During the same school holidays between December 2002 and February 2003, MPD took the complainant with him to a dam. Whilst they were at the dam, MPD asked the complainant to perform oral sex upon him. She pulled down his pants, masturbated his penis and placed his penis in her mouth. She performed fellatio upon him and he ejaculated into her mouth. The complainant described it in her record of interview in the following terms:
A.Okay, um, it was - - we were still in the car. Um, [MPD] had asked me, um, if I would, urn, give him oral sex. Um, I can't remember exactly how we were sitting or anything like that. Um, I think I was still in my seat belt so I bent over towards the driver's seat, um, and basically I just, um, put his penis in my mouth and I was yeah sucking it and then, um, he came into my mouth and then, um, we got out of the car got the net and then drove back.
Whilst the complainant performed fellatio upon MPD, she was encouraged by him to masturbate herself by penetrating her vagina with her fingers. The events that occurred at that time constitute counts 3 and 4 on the indictment: Criminal Code s 329(2), s 329(3) and s 329(9)(a).
Between February 2003 and May 2003, an incident occurred in the bedroom of the appellants. JD was sitting on the bed naked and MPD was sitting next to her. The complainant was at the end of the bed. JD demonstrated to the complainant how to masturbate by moving her fingers on her clitoris and inserting them into her vagina. This was done in full view of the complainant. Whilst JD did this, MPD told the complainant that masturbation was normal and something she should do herself.
The account given by the complainant in her video record of interview is as follows:
A Well I think [JD] was laying on the bed and [MPD] was sitting there and I don't know exact - - I don't really remember it. It was, um, a while - - like a long time before this that happened.
Q.Yeah - -
A.And I remember something about it's okay it's normal or something and then, um, I - - all I remember is [JD] was touching herself, like she was rubbing her clitoris with two fingers and that's all I remember.
This offence is the subject of count 5 on the indictment, being the offence of indecently dealing with the complainant by JD touching her vagina in the presence of the complainant: Criminal Code s 329(4), s 329(10)(a).
Shortly after the complainant's 13th birthday, the appellants and the complainant were in the lounge room of their home watching television. JD said that she wanted to watch a pornographic video. She left the room to get one. She returned and played an X‑rated video. It depicted numerous women performing sexual acts. MPD told the complainant that he wanted her to stay and watch the video. MPD and JD sat on the couch naked, watching the video. MPD then lay on the couch and JD got on top of him and the two of them began to have sexual intercourse in the presence of the complainant. JD then lay on the couch and MPD performed oral sex on her by licking her vagina. This was done in the presence of the complainant who was sitting nearby. Whilst the video was playing, the appellants encouraged the complainant to masturbate herself by rubbing her clitoris and inserting her fingers into her vagina. The complainant's account of the incident given in her record of interview was as follows:
A.... I was sitting there watching it as well and [MPD] had - - was encouraging me to masturbate. Um, basically we would - - he got [JD] to show me how to do it basically. Um, just, ah, rubbing, um, your clitoris and, um, sliding your fingers into my vagina and that sort of thing. Um, I was sitting on the couch and [MPD] and [JD] were sitting right in front of the TV and they were having sex and, um, [MPD] was, um, performing oral sex on [JD] and the other way around as well, [JD] would do it to [MPD] and, um, yeah I was sitting on the chair watching both of them - - the video and them and masturbating and nothing was said on this time, it was just - - and then we went to bed after that.
These facts underlie the offences contained in counts 6, 7 and 8 on the indictment, being offences of indecent dealing by showing pornographic material, indecent dealing by engaging in a sexual act in the presence of the complainant and encouraging a child to engage in sexual behaviour; namely, to penetrate her vagina with her fingers: Criminal Code s 329(3), s 329(4) and s 329(9)(a), s 329(10)(a).
Between April 2003 and May 2003, the appellants and the complainant were in the lounge room of their home. At this time, the complainant had just turned 13 years of age. The complainant and JD were lying on the floor of the room and MPD was on a couch. JD and the complainant were only partly clothed. JD performed cunnilingus upon the complainant. She licked her on the clitoris and vagina. Whilst JD did this, the complainant performed oral sex upon JD. MPD remained in the room, observing what was occurring. This event was admitted by JD in her video record of interview when she said:
A.There was one occasion where [the complainant] and I gave each other oral sex.
Q.Okay. Was that [JD] - - was [R] there at that time?
A.No, it was in the lounge room of our own home ...
These facts constitute counts 9 and 10 on the indictment, which are sexual penetration by the appellants of the complainant by JD engaging in cunnilingus with the complainant and encouragement by the appellants of the complainant to engage in sexual behaviour by the complainant engaging in cunnilingus with JD: Criminal Code s 329(2), s 329(3), s 329(9)(a).
Between 5 April and 31 May 2003, at a time when the complainant was 13 years of age, there was an incident when the appellants and the complainant were in the appellants' bedroom. MPD was on the bed next to the complainant and JD was sitting at the end of the bed. MPD placed his hand under the complainant's shorts and rubbed her clitoris and vaginal area. He penetrated her vagina with his fingers. He then removed his hand, pulled the complainant's shorts and underwear off, spread her legs and performed cunnilingus upon her. MPD admitted this in his video record of interview in the following terms:
Q.- - then put your hand down her pants and started masturbating her.
A.I don't believe that one occurred, but anyway, does that really matter? I don't remember that one.
Q.Yeah. And then after that you then, um, spread - - spread her legs and then started giving her oral sex. And [JD's] watching at the time.
A.Yeah. Yeah, I - - I mean don't get me wrong, it did occur once. There was a - - I did have oral sex with [the complainant] once. Um ‑ ‑
Q.Where did that occur?
A.Yeah, I - - I think it was our - - our room.
Q.Yep. And was [JD] watching?
A.I'm not 100 per cent on that one either. I - - yeah, I don't know if she was.
Q.And when you say you had oral sex, is it oral sex, you licked her vagina?
These facts constitute counts 11 and 12 on the indictment, being allegations that the appellants sexually penetrated the complainant by MPD penetrating the complainant's vagina with his fingers and the appellants sexually penetrating the complainant by MPD engaging in cunnilingus with the complainant: Criminal Code s 329(2) and s 329(9)(a).
Between 1 May and 31 December 2003, a series of events occurred at the house of the appellants' neighbours which was close to their home. The facts constituting these offences are quite shocking. The appellants and the complainant went to the home of their neighbours where the husband and wife were present. There were, thus, four adults and the complainant in the house. They were in the lounge room watching television, with JD, the female neighbour and the complainant sitting on the floor. MPD and the male neighbour were sitting in armchairs.
Whilst sitting on the floor, the female neighbour performed cunnilingus upon JD in the presence of the complainant. Whilst this was happening, the female neighbour reached over to the complainant, put her hand underneath the complainant's pants and rubbed her clitoris. MPD and the male neighbour watched what occurred. The complainant removed her own pants and JD went to the complainant. JD spread the complainant's legs and engaged in cunnilingus upon the complainant. JD stopped and the female neighbour then performed cunnilingus upon the complainant. Whilst this was happening, JD, MPD and the male neighbour watched. JD masturbated herself as she watched. These facts underlie counts 13, 14, 15 and 16 on the indictment, being offences which allege:
(1)that JD and the female neighbour indecently dealt with the complainant by engaging in cunnilingus in her presence: Criminal Code s 321(4) and s 321(8);
(2)JD, MPD and the two neighbours sexually penetrated the complainant by the female neighbour penetrating the complainant's vagina with her fingers: Criminal Code s 321(2) and s 321(7);
(3)JD, MPD and the two neighbours sexually penetrated the complainant by JD engaging in cunnilingus at a time when MPD, JD and the two neighbours were in company with each other: Criminal Code s 321(2) and s 321(7);
(4)MPD, JD and the two neighbours sexually penetrated the complainant by the female neighbour engaging in cunnilingus at a time when MPD, JD and the two neighbours were in company with each other: Criminal Code s 321(2) and s 321(7).
The full magnitude of these offences can be understood from the complainant's statement about it in her video record of interview when she said:
AOh we'd go over for drinks I think and, um, [B] and [MPD] were sitting in two arm chairs in their lounge room in the two arm chairs and [JD] and [R] started to - - um, well I remember [R] I think started it, um, was fingering, ah, [JD]. Um, I didn't see exactly what was going on, um, and the, um, next thing I remember was - - was [R] started to , um, give [JD] oral sex and then, um, again I didn't see exactly what was going on. Um, and then [R] started to finger me, um, like yeah and was rubbing my clitoris and that sort of thing. Um, I was wearing a skirt and she put her hand underneath my underpants - - underwear, um, and then [JD] and [R] swapped so [JD] was doing it to [R], was giving [R] oral as well, um, and then, um, next thing I remember was [JD] started to, um, give me oral sex and then [R] did it as well. I still had my skirt on but, um, my underpants had been taken off. Um, I think I took them off and [B] and [MPD] were just sitting in the arm chair just watching it.
It was shortly after this event that the complainant locked herself in her room and refused to take part in any further sexual activities with the appellants. The appellants, through their counsel at the sentencing proceedings, claimed that they too decided to have no further sexual involvement with the complainant.
Sentencing judge's comments
The sentencing judge reviewed the facts and made the following observations about the abnormal relationship which existed between the complainant and the appellants:
The visually-recorded interview and other factual information on the file indicate an extremely abnormal relationship between the complainant and her parents. She was treated as an adult, dealt with as if she were an adult involved in sex and not protected as one would have expected of a child that young. Sexual behaviour of this kind was normalised in her living arrangements and as young as she was, she did not realise at the time that that is not normal in the wider world. By living as the family did in their isolated home ... they were able to keep her in this sexually subservient role.
The sentencing judge made reference to the personal circumstances of each of the appellants. She dealt first with JD. She was 34 years of age at the time of sentencing and she had no prior record. She was, until being taken into custody in relation to the offences, employed. She was midway through a three‑year degree.
The sentencing judge had before her a psychiatric report and a psychological report which were tendered on JD's behalf. She also had a pre‑sentence report, attached to which was a report from a psychologist. There was an addendum to the pre‑sentence report. It indicated that JD would be given female‑specific treatment for sex offending whilst in prison.
The sentencing judge reviewed the psychiatric report of Dr Arvid Leinde. He found no specific psychiatric problems, nor any personality disorder in JD. He suggested that JD may have had the 'parental end of attachment disorder', being a disorder in which there is no bond or instinctual close feeling for a natural child. The psychiatrist attributed this, inter alia, to JD's naivety, her youth, and repressed, unloving childhood.
The sentencing judge observed that JD had attended SafeCare in February 2006, where she was found to be remorseful about her offending. She had joined into group therapy and had completed three 10‑week programme modules at the time of sentencing.
The psychological report suggested that JD's offending was possibly connected to drug use, as well as long‑term effects of post‑traumatic shock as the result of early childhood sexual abuse. It was considered that JD was at a low risk of reoffending.
The sentencing judge noted that MPD was 35 years of age (in fact, he was 34, approaching 35), and employed. He was educated to year 12 and had completed two years of a degree. That education was interrupted when he became involved with JD and he began to support her and the complainant.
Again, the sentencing judge had a pre‑sentence report and psychological reports in relation to MPD. They revealed no significant psychological illness at the time of commission of the offences. MPD endeavoured to explain the offending as initially some form of sex education for the complainant. MPD admitted, however, that what he had done was wrong and was unacceptable. He was assessed as being at a low risk of reoffending.
MPD had also attended SafeCare and joined in the group therapy model. He had completed three of four 10‑week programme modules at the time he was taken into custody. He had also attended some individual sessions. One of the psychologists who assessed MPD concluded that he had demonstrated 'concern, guilt, remorse and willingness to address his sexual offending'. The sentencing judge noted, however, that the pre‑sentence report assessed MPD as regretting his offending, insofar as it had impacted on the family relationship, but failed to acknowledge the physical and emotional impact that the offending may have had upon the complainant. The ultimate assessment was that MPD's remorse appeared to be more related to his predicament than to the effect upon the complainant.
The sentencing judge considered that the offences displayed the grossest breach of trust. Her Honour said:
For the mother and long‑term stepfather of a child who was in their care and protection to treat a child in this manner over a period of some eight or nine months during 2003 is extremely serious offending.
The sentencing judge took account of the fact that the complainant was very young. She was just 13 years of age at the time the most serious offences were committed. Her victim impact statement was summarised in the following terms:
[It] indicates that the complainant suffers the classic symptoms that we find in victims of child sex abuse. She has suffered a loss of trust. She is turned in on herself. She now finds relief from all of this in being with horses, riding her horse. I am fully satisfied that this sexual abuse over such an extended period of time by persons who were responsible for her care, who she should have been able to trust, must inevitably have affected all the kinds of later sexual relationships she will be able to enjoy. This is extremely serious offending against a young child by her parents.
The sentencing judge found a number of mitigating factors for the appellants. The first of those were their pleas of guilty at an early stage. Her Honour accepted that JD exhibited genuine remorse, but concluded that MPD's remorse was less significant. Her Honour noted that there was a matter of concern; the appellants had not agreed to co‑operate with the prosecution in relation to the charges pending against their co‑accused. She said:
I believe that factor detracts somewhat from the value of their early pleas of guilty. Their failure to cooperate in the prosecution of the [Gs] also detracts from the total remorse on the part and whether that remorse is complete and shows a genuine concern for the complainant.
The sentencing judge took into account the fact that the appellants were first offenders and also took account of the fact that there had been no penile penetration of the vagina. Although there had been digital penetration and oral penetration in the form of cunnilingus, the absence of penile penetration meant that the offending was removed from the most serious kind of child sex abuse to come before the court. Nevertheless, her Honour noted that C v The State of Western Australia [2006] WASCA 261 established that, whilst digital penetration is ordinarily less serious than penile penetration, any sexual penetration of a child is a serious offence and repeated instances of sexual offending against a child ordinarily attracts a severe sentence.
The sentencing judge concluded, after taking account of all factors (including the totality principle), that the appropriate aggregate sentences for each of the appellants were 10 years 2 months in the case of MPD and 9 years 7 months in the case of JD. The individual sentences imposed were as follows:
| Table of sentences imposed | ||||
| JD | MPD | |||
| Count | Sentence | Count | Sentence | |
| 1. | 6 months | 1. | 6 months | |
| 2. | 6 months | 2. | 6 months | |
| 5. | 13 months | 3. | 2 years 8 months | |
| 6. | 13 months | 4. | 2 years 2 months | |
| 7. | 6 months | 5. | 13 months | |
| 8. | 2 years 2 months | 6. | 13 months | |
| 9. | 2 years 8 months | 7. | 6 months | |
| 10. | 2 years 8 months | 8. | 2 years 2 months | |
| 11. | 2 years 2 months | 9. | 1 year 7 months | |
| 12. | 2 years 8 months | 10. | 1 year 7 months | |
| 13. | 1 year 7 months | 11. | 2 years 2 months | |
| 14. | 3 years 3 months | 12. | 2 years 8 months | |
| 15. | 4 years 3 months | 14. | 1 year 7 months | |
| 16. | 3 years 3 months | 15. | 3 years 3 months | |
| 16. | 3 years 3 months | |||
In the case of JD, the sentences on counts 1, 2, 5, 6, 7 and 8 were ordered to be served concurrently with all other sentences. The sentences on counts 9 and 10 were ordered to be served concurrently with each other, but cumulative on the total sentence. The sentences on counts 11 and 12 were ordered to be served concurrently with each other, but cumulative on the total sentence. The sentences on counts 13, 14, 15 and 16 were ordered to be served concurrently with each other, but cumulative on the other sentences.
In the case of MPD, the sentences on counts 1, 2, 5, 6, 7 and 8 were ordered to be served concurrently with other sentences. The sentences on counts 3 and 4 were ordered to be served concurrently with each other, but cumulative on the total sentence. The sentences on counts 9 and 10 were ordered to be served concurrently with each other, but cumulative on the total sentence. The sentences on counts 11 and 12 were ordered to be served concurrently with each other, but cumulative on the total sentence. The sentences on counts 14, 15 and 16 were ordered to be served concurrently with each other and cumulative on the total sentence.
Grounds of appeal
The two grounds of appeal, including relevant particulars are as follows:
1.The sentence is [sic sentences are] manifestly excessive (error of mixed fact and law).
Particulars - the Appellants' sentences are manifestly excessive given:
A.the mitigating aspects of the Appellants' offending behaviour, particularly that their offending behaviour:
a)did not involve acts of penile penetration or the use of foreign objects
b)did not involve acts of coercion or forceful behaviour;
c)did not involve cruelty; and
d)the majority of offending occurred over a period spanning some 10 months.
B.the mitigating factors personal to the Appellants, particularly:
a) they are of previous good character with no prior record;
b) they experienced sexual abuse as children which contributed to their immaturity and lack of parental boundaries;
c) they made a conscious decision to desist from further offending behaviour;
d) the remorse they demonstrated through -
- their participation in a WA Police video record of interview,
- the extensive and almost full admissions made therein,
- the rehabilitation they sought by participation in the Safe Care program and
- their various counselling and consultations with psychologists and psychiatrists, - their early pleas of Guilty, and
- further, in the case of [MPD], his letter to the sentencing judge.
e) the rehabilitation they had achieved by their participation in the SafeCare program and their various counselling and consultations with psychologists and psychiatrists.
2.The sentencing judge gave insufficient weight to the rehabilitation the Appellants had sought and achieved in the community prior to their sentencing (error of law).
Particulars
a)the Appellants at significant expense and effort were successfully completing the intensive SafeCare program in addition to undergoing counselling and consultations with psychologists and psychiatrists;
b)as a matter of principle a significant discount on sentence should be given, with the amount of the discount stated, to child sex offenders who genuinely and successfully engage in such rehabilitation so as to promote and encourage it
c)given the above particulars the sentencing judge erred in refusing to grant the Appellants bail pending their sentence so that they could at least complete the fourth and final 10 week module of the SafeCare program.
Ground 1
At the hearing of the appeal, counsel for the appellants conceded that this ground really means that the sentences imposed upon each of the appellants were in breach of the totality principle and constituted crushing sentences for each of them. The ground is not framed that way and although there was a tentative suggestion that it might be amended, it was not.
What is clear is that no individual sentence imposed by the sentencing judge is contended to have been manifestly excessive. It is the aggregate sentence in each case which is contested.
Irrespective of the way in which the appellants sought to frame ground 1, I shall deal with it as a contention that, in each case, the ultimate sentence (10 years 2 months for MPD and 9 years 7 months for JD) failed adequately to reflect the totality principle in sentencing. The particulars annexed to the ground set out the reason why the appellants contend that the aggregate sentence each received was excessive.
The first particular contends that there were mitigating aspects of the offending behaviour of the appellants in that the offending behaviour did not involve acts of penile penetration or the use of foreign objects; did not involve acts of coercion or forceful behaviour; did not involve cruelty; and occurred over a period of only 10 months.
The first point about this particular is that there was, in fact, penile penetration by MPD of the complainant's mouth (count 3). If the particular means that there was no penile penetration of the vagina, it is correct. It is true that no foreign objects were used, but it seems to me that that is not to the point. The case could have been worse, but that does not mean that it was not a bad case of its kind. It was. Likewise, the assertion that there were no acts of coercion, forceful behaviour or cruelty are to be seen in the light of the fact that the case could have been worse than it was, but was still extremely bad. The period of 10 months over which the sexual behaviour occurred was, on any view of it, a lengthy period for the complainant, who was between 12 and 13 years of age at the time the events occurred.
In short, although there may well be worse cases than this, the absence of force, cruelty and the use of foreign objects in sexual assaults does not mean that the seriousness of the offences is any the less. In times past, it was thought that the offence of rape was all the more serious if the complainant lost her virginity or underwent the risk of pregnancy, but that thinking has changed. Today, the emphasis is upon the effect that sexual offences against young girls can have on their long‑term enjoyment of life. It was spelled out by the court in VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [289] ‑ [292] in the following terms:
It is fair to observe that if one goes back more than a decade in relation to such cases, there is frequently a degree of emphasis placed upon factors such as loss of virginity or risk of pregnancy (in relation to young girls) and to considerations such as threats of force or violence. These factors remain of significance.
However, more information about the effects of this type of offending often emerges from the more detailed submissions now made by the State at the time of sentencing, and a pattern emerges from victim impact statements. Hypotheses about the likely effect of such behaviour on young children can be tested against evidence, which emerges at trial or which is contained in victim impact statements, from adult women who now come forward as complainants in relation to sexual offences which occurred against them many years ago, and in whose lives the effect of such offending has had time to develop.
In the light of those experiences, courts now understand much more clearly the destructive effect of all such offending (whether accompanied by overt violence or not) upon a child's capacity to trust others and to form relationships, and upon the child's sense of self-worth. Particularly in cases of frequent or prolonged abuse, an inability to form adult relationships, or an inability to maintain them, exaggerated doubts and fears in relation to the parenting of the complainant's own children, and disrupted schooling which adversely affects the complainant's future educational and employment prospects, are very common. Also frequently encountered in such cases are drug or alcohol abuse, self-harm, and attempted suicide.
In some of the past cases one can detect a sense that if an offender's wife, or other members of the family, were said to be "standing by him", that was seen as potentially mitigating. It is now understood, however, that most child complainants feel that the abuse is to some degree their fault and that broken family relationships are their responsibility, so that the estrangement of a complainant from other members of the family which often occurs where family members 'take sides', is rightly seen now as yet another serious consequence of the offender's choice to offend in that way.
These sentiments were echoed by Steytler P (with whom Wheeler and McLure JJA agreed) in C v The State of Western Australia [14]:
Moreover, it has recently been said that the trend for sentencing in cases of intra-familial sexual assault or abuse is for sentences to be firmed up having regard to a greater understanding of the impact such offences have on young victims: see Playle v The Queen [2004] WASCA 86 at [38]; Bosworth v The Queen [2004] WASCA 43 at [20] and see also, more generally, VIM v Western Australia (2005) 31 WAR 1 at [288] to [315] and PDS v The State of Western Australia [2006] WASCA 20 at [28].
In C v The State of Western Australia, Steytler P also made some observations about the distinction between digital and penile penetration. He was there talking of digital and penile penetration of the vagina. Steytler P said at [13] ‑ [14]:
As to the seriousness of offending of the kind that occurred in this case, there is support in the cases for the proposition that digital penetration is ordinarily less serious than penile penetration: see, for example, LSC v The Queen [2003] WASCA 303 at [22]. However, it is plain that any sexual penetration of a child is a serious offence and that repeated instances of sexual offending against a child will ordinarily attract a severe sentence: see, for example, Price (1988) 33 A Crim R 359 and Sell v The Queen (1995) 15 WAR 240.
In Podirsky (1989) 43 A Crim R 404, Malcolm CJ said at 411, in the context of a case which involved penile penetration, that, where there is a series of offences of aggravated sexual assault involving a girl under 16 years, sentences within the range of 9 to 11 years are commonly imposed: see also Woods v The Queen (1994) 14 WAR 341. Allowing for the effect of the transitional provisions, this would equate to a range of between 6 and about 7 1/2 years' imprisonment. While offences involving digital penetration have generally attracted lower sentences (see, for example, Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995; Ling v The Queen [2000] WASCA 129; Germain v The State of Western Australia [2004] WASCA 293; and H v The State of Western Australia [2006] WASCA 53), and while these vary significantly depending upon the nature of the offending, offences of that kind still warrant significant punishment. That is especially so in cases in which there is a serious breach of trust in an intra-familial context: Trescuri v The Queen [1999] WASCA 172 at [21].
Wheeler JA said at [28] and [32] ‑ [33]:
It is correct to say that there is support in the cases for the proposition that digital penetration is less serious than penile penetration: LSC v The Queen [2003] WASCA 303. Further, that proposition appears to be supported by the observations of the High Court in Ibbs v The Queen (1987) 163 CLR 447, especially at 452.
...
In the majority of cases, penile penetration is more serious than digital penetration, fellatio or cunnilingus. This is because, when regard is had to either the actual or the potential harm to be caused by the conduct, the risks associated with penile penetration can include pregnancy, a sexually transmitted disease, and, in the case of children, often pain, or even physical damage. Penile penetration will also, often, be perceived by the victim as a more serious affront to personal dignity and bodily integrity. In addition, many cases of penile penetration tend to be associated with a greater degree of force or violence than cases of digital penetration.
However, there can be very serious cases which do not involve penile penetration. Some cases of penetration involving objects are obvious examples. Some cases of digital penetration can be extremely forceful and very serious in their consequences. Some other forms of penetration may be effected because the offender considers that they are more likely to be degrading and humiliating to the victim (see, eg, Turaga v The State of Western Australia [2006] WASCA 199).
In the present case, it was recognised by the sentencing judge that, at no time, was the complainant subjected to penile penetration of the vagina. Her Honour considered that this removed the case from the most serious kinds of cases of child sex abuse to come before the court. It was a factor which was clearly taken into account.
Authority suggests that, whilst penile penetration of the vagina may aggravate the circumstances of a case, penile penetration of the mouth and digital penetration of the vagina are, nevertheless, extremely serious. In the circumstances of a particular case, they can cause significant harm to the victim. This was such a case. The child was only 12 to 13 years of age. On any view of it, the abuse she suffered over a period of approximately 11 months must have been likely to have had an adverse effect upon her and upon her life in the future.
The second particular contends that there were significant mitigating factors for the appellants by reason of the fact that they had previous good character with no prior records; had experienced sexual abuse as children; had made a conscious decision to desist from further offending; had demonstrated remorse; and had undergone significant rehabilitation.
It is well established that in cases of intra‑familial sexual abuse, matters personal to the offenders are of less mitigatory weight than might otherwise be the case: VIM v The State of Western Australia [320] ‑ [321]. In R v Petchell (Unreported, WASCA, Library No 930346, 16 June 1993), Franklyn J (with whom Walsh and Rowland JJ agreed) at 10 said that, in cases of a sexual nature, the fact that an offender is otherwise of good character can have only little weight because the offences are of such a nature that, until brought to light, they generally do not impinge upon others, nor upon their perception of the offender.
Applying those principles to the present case, it has to be said that the prior good character (in the sense of no prior record) of the appellants was not a major mitigating factor. Nor, in my opinion, was the fact that the appellants may themselves have experienced sexual abuse as children. They were both well aware that what they had done was wrong. MPD specifically said in his record of interview that he felt guilty about what had occurred. JD made it quite clear in her record of interview that she knew exactly what she was doing to the complainant. She appeared to justify it on the basis that she herself had had a religious upbringing and she did not want the complainant to have that 'baggage'.
In a report written by Ms C Chamarette, clinical psychologist (11 January 2007), reference is made to the fact that JD 'could be' regarded as suffering long‑term consequences of early childhood abuse, which should be regarded as an explanation and contributing factor to her behaviour in relation to her daughter. There was no psychiatric illness or mental impairment and the conclusion in relation to early childhood sexual abuse was only tentative.
Dr A G Linde, a clinical psychiatrist, said of JD that, at the time of her offending, she knew what she was doing and knew that it was wrong. The explanation he gave for her behaviour was that she was under the influence of some alcohol, in a highly sexually charged state, naïve, and with no bond with the complainant.
In a report (11 January 2007) relating to MPD, Ms Chamarette mentions that MPD disclosed that he had been abused by a male as a child. He acknowledged that it may have contributed to his own behaviour, but he did not want to use it as an excuse. She reached the tentative conclusion that he 'could be regarded' as suffering long‑term consequences of childhood sexual abuse.
Ms L W Coxon, a forensic psychologist, expressed the view in a report (10 April 2006) that various factors and circumstances may have contributed to MPD's behaviour, including his past history of sexual abuse. The conclusion again is a tentative one.
The third particular contends that the appellants each made a conscious decision to desist from further offending behaviour. That was a submission that was put on behalf of the appellants at the sentencing hearing. The sentencing judge decided against having any trial of issues on the subject and concluded that the sexual behaviour stopped and that 'they all were involved in the stopping'. Her Honour pointed out that the complainant withdrew and that, of course, is consistent with what the complainant said to police in her record of interview.
Whoever made the decision to desist from further offending (and on the sentencing judge's conclusions it must be accepted that all were involved), the fact still remains that the behaviour covered almost a full year, at a time at which the complainant was between 12 and 13 years of age.
The fourth particular contends that the appellants demonstrated remorse in various ways. The first was their participation in a video record of interview; the second, their admissions; the third, their rehabilitation; the fourth, their early pleas of guilty; and, finally, in the case of MPD a letter to the sentencing judge.
The sentencing judge accepted that there was evidence of remorse, but thought that JD showed genuine remorse and MPD remorse for the predicament that he had got himself in more than anything else. The sentencing judge made an allowance for that remorse. She did, however, point out that the appellants had refused to co‑operate with the prosecution in relation to charges which were pending against their co‑accused. At the hearing, we were told that the co‑accused were acquitted. The only evidence against them was the pre‑recorded video evidence of the complainant. The accused did not give evidence.
It seems to me that the refusal of the appellants to testify against their co‑accused tells against the extent of their remorse and tells against the significance of their pleas of guilty.
I would regard the pleas of guilty as demonstrating evidence of remorse, some acceptance of responsibility and some facilitation of the course of justice (Cameron v The Queen (2002) 209 CLR 339 [11] (Gaudron, Gummow and Callinan JJ), but the effect of the pleas was, in my view, lessened by two factors:
(a)The appellants were arrested on 17 January 2006, but did not plead guilty to all charges until 27 November 2007. They at first negotiated in relation to pleas of guilty, indicating that they would plead to all matters, except those involving the co‑accused, and it was only in February 2007, some 12 months after their arrest, that they finally agreed to plead guilty to all matters.
(b)By refusing to testify against their co‑accused, the appellants forced the complainant to have to give evidence against the co‑accused. The facilitation of justice was not, therefore, as complete as it might otherwise have been.
There is no doubt that the appellants did undergo a course of rehabilitation. That was through SafeCare Inc, a Department of Community Corrections organisation where Ms Chamarette is employed. It appears from the reports to which I have made reference that the appellants first attended SafeCare on 23 February 2006 (MPD) and 28 February 2006 (JD). They participated in three SafeCare modules. They were an introductory module, a module dealing with childhood issues and a module dealing with victim empathy.
Important though the attempted rehabilitation was, it is apparent that they did not begin courses of rehabilitation until after their arrest. That was approximately two years three months after the last of the sexual offences, the subject of the indictment.
The fact that MPD wrote to the sentencing judge expressing remorse for what he had done was not, in my opinion, of any particular significance. The letter expressed some remorse, but it also indicated that MPD was greatly concerned about the stress that the whole affair had placed upon himself. Letters to sentencing judges seldom advance aspects of mitigation.
The final particular under the first ground of appeal relates to the rehabilitation achieved. I have already made reference to this. Ms Chamarette recommended continued rehabilitation through the SafeCare programme, but that was in the context of a non‑custodial sentence. Such a sentence was out of the question, having regard to the seriousness of the offences committed in this case.
It can be taken that such rehabilitation as the appellants undertook was to their benefit. It can also be taken that they were rated by Ms Chamarette as being at a low risk of reoffending. It should be noted that this rating may be regarded with caution, since the appellants had not admitted to Ms Chamarette their offending which involved their neighbours. Nevertheless, it was relevant. Three years had passed since the offences occurred. The complainant, of course, had moved away from the care of the appellants. Rehabilitation was important, but it was only one factor in the sentencing considerations which the sentencing judge faced.
The reliance place by counsel for the appellants on R v Chilvers [2003] WASCA 87 does not appear to me to be to the point. In that case, the Crown appealed suspended sentences and intensive supervision orders imposed in relation to offences of indecent dealing and sexual penetration of a de facto child. The appeal was dismissed on the basis that there could have been no valid complaint if the judge had concluded that a sentence of immediate imprisonment was required, but the judge's exercise of the sentencing discretion was within the parameters open to her (McKechnie J at [29]). There was evidence in the case that the respondent had attended a SafeCare programme and had made a good beginning in addressing his sexual offending. A non‑custodial penalty was considered by McKechnie J at [15] to allow for continued treatment and protection from reoffending which would 'also be much better for him and for his family'.
The present case is quite different from that of Chilvers. A sentence of imprisonment to be served immediately was the only disposition open. Indeed, it has not been argued to the contrary. There could not be continued involvement in SafeCare programs.
Counsel for the appellants sought to take the court to a number of cases which were said to be comparable with the present case. It should be said, however, that reference in 'micro‑detail' to other cases of sexual offending which have some similarities to the present case is of very limited value. In Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [42] I made this point in the context of a drug case:
The cases referred to by counsel for the applicant and Stapleton v The Queen do no more than confirm the cautionary observation of Kennedy J in Allen v The Queen that although examples of cases provide some guidance on appropriate sentences, their facts vary widely and they must be applied with considerable care
The same thing can be said of the cases to which counsel for the appellants made reference.
The first case referred to was R v G [2001] WASCA 160. This was a Crown appeal, in relation to which special considerations obviously apply. The respondent had been convicted after trial of three offences of a sexual nature against her daughter. She was sentenced to an effective term of 6 years' imprisonment and the Crown contended that the sentences which had been imposed were manifestly inadequate and failed to reflect sufficiently the serious nature of them. The child concerned was only 8 or 9 years of age when the offences occurred and there had been exploitation and corruption of the child by both the respondent and by her co‑offender, who was the child's father. The father had been convicted of indecent dealing and sexual penetration, and had been sentenced to a total effective term of 13 years' imprisonment.
Murray J (who was in agreement with Wallwork and Anderson JJ in dismissing the appeal) noted that the sentencing judge had found the respondent's husband to be very much the driving force in the offending behaviour. Murray J concluded at [40] that the evidence revealed that the respondent had not initiated what had occurred, but had acquiesced in it and assisted to overcome her daughter's disquiet. Further, she had been the victim of abusive behaviour throughout her childhood, had no experience of the world, had fallen pregnant at a very young age, and was under the total domination of her husband. The court concluded that the sentences imposed were lenient, but, in the context of a Crown appeal, the court was unable to conclude that they were disproportionate. I can find nothing in the decision that assists the appellants in this case.
The second case referred to is S v The Queen [2004] WASCA 113. The applicant had been convicted of 10 counts of indecent dealing with a child, seven counts of sexually penetrating a child, one count of procuring a child to engage in sexual behaviour and three counts of breaching a violence restraining order. The child was under the age of 16 years at the time the offences occurred. The applicant was in a relationship with the child's mother.
The effective sentence imposed upon the appellant was 10 years. It was a sentence imposed prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). Malcolm CJ (with whom Templeman and Miller JJ agreed) concluded that, given the nature of the offences, the degree of perversion involved in a number of those offences, the disparity in age and the relationship between the applicant and the victim, it was quite impossible to accept that the sentences imposed, whether looked at individually or collectively, were manifestly excessive. Leave to appeal was granted, but the appeal against sentence was dismissed.
I find very little in this case of assistance to the appellants. The case has nothing to do with the present case. In any event, the decision of the Court of Criminal Appeal simply was that a sentence of 10 years' imprisonment was not manifestly excessive in the circumstances.
The third case to which reference was made was H v The State of Western Australia [2006] WASCA 53. Here, the appellant had been charged with 21 counts of sexual offences committed against his stepdaughter over a period of eight and a half years. He was tried on all counts, but before his trial pleaded guilty to six of those counts. He was convicted on a number of counts, although acquitted on two. He was sentenced to 10 years' imprisonment. The Court of Appeal (Steytler P, Roberts‑Smith and McLure JJA) reduced the sentence of 10 years to a sentence of 8 years' imprisonment. The sentences imposed were 'post‑transitional' sentences. The case did involve one count of penile‑vaginal sexual penetration and that sets it apart from the present case. However, the court was concerned to achieve consistency with the conclusions reached by the Court of Appeal after a comprehensive examination of the range of sentences in cases of sexual offending against children in VIM v The State of Western Australia (see McLure JA at [75]) and it was to achieve this consistency that the sentences were reduced and the effective sentence of 8 years reached. I will turn shortly to the conclusions reached by the Court of Appeal in VIM v The State of Western Australia about the appropriate range of sentencing.
Playle v The Queen [2004] WASCA 86 was also relied upon. This was a case in which the appellant was sentenced to 10 years' imprisonment following his pleas of guilty to 15 counts of sexual offences against a stepdaughter. These offences included six counts of sexual penetration and nine counts of indecent dealing. There were four counts of penile penetration of the vagina, two counts of penetration of the vagina with the finger, three counts of indecent dealing by engaging in sexual activity in front of the complainant, and other counts of indecent dealing. The offences occurred on eight separate occasions and involved a stepdaughter who, at the relevant time, was aged between 13 and 15 years. They were described by Miller J at [7] as 'a series of horrifying sexual offences' and by the sentencing judge as 'a series of acts of perversion and cruelty' (see Miller J at [19]). The effective sentence of 15 years' imprisonment under the 'old law' was a 10‑year sentence after application of the transitional provisions. That is a sentence which effectively equals the sentences imposed upon the appellants in the present case.
It is true that, in Playle v The Queen, there were acts of penile penetration of the vagina and this does mark a point of distinction from the present case. An appeal against the severity of the sentences imposed was dismissed. The case was described by Miller J at [40] as 'one of the worst examples of intra‑familial sexual abuse that could come before the court' and it was. The court was not saying that, in such cases, a sentence of 10 years' imprisonment (post‑transitional) is as much as should have been imposed.
In Lawrence v The State of Western Australia [2005] WASCA 14, the applicant had been sentenced to 8 years' imprisonment in relation to one count of indecent dealing with a child between the ages of 13 and 16 years and nine counts of sexually penetrating a child between the ages of 13 and 16 years. The offences were committed over a period of approximately one week by an offender who was the 'de facto uncle' of the complainant and, thus, in a position of trust with her. The case turned on the question whether the proper statutory adjustment had been made pursuant to the provisions of the Sentencing Legislation Amendment and Repeal Act 2003. Appropriate adjustments were made by the court to result in an aggregate sentence of 5 years 4 months' imprisonment (post‑transitional).
Nothing said in the case suggests that a sentence of 8 years' imprisonment (pre‑transitional) was disproportionate to the criminality of the individual offences, or the overall criminality (see Roberts‑Smith JA at [160]). Again, the fact that, in this case, the sentence may have been one of 5 years 4 months' imprisonment does not mean that it sets a ceiling for the type of offences being considered.
The final case referred to was VIM v The State of Western Australia. This is an important case, because the court (Wheeler and Roberts‑Smith JJA and Miller AJA) engaged in the exercise of comparing a number of decisions relating to sexual offences against children. The first conclusion reached was at [307]:
It is very clear that sentences for multiple counts of sexual offending against a child have significantly "firmed-up" since the survey undertaken by Anderson J. Cases such as Podirsky, Jarvis, Petchell, and Shepherdson, can no longer be regarded as reliable guides. Offending of the type described in them is now regarded significantly more seriously. It should also be noted, in this context, that in a number of the more recent cases reviewed, older examples such as Jarvis and Podirsky were apparently seen as setting roughly an 'upper limit'. Bishop v The Queen [2002] WASCA 79 (16 years, pre-transitional provisions) and Morley v The Queen [2001] WASCA 49 (13 years, pre-transitional provisions) are examples of such cases.
The second conclusion reached was at [309]:
Finally, in relation to offences of this kind (that is, cases of frequent or prolonged sexual offending against a child or children), it is convenient to undertake the exercise of converting the sentences which we have discussed into those which would be imposed after the transitional provisions came into operation on 31 August 2003. The 'lower end' cases of up to 4 years formerly, would now be up to 2 years and 8 months; the most common sentence one would expect to see would be approximately 6 years and 8 months, and about two-thirds of sentences in such cases would fall within the range 6 years 8 months to 12 years 8 months (the former 10 to 19‑year range). A term other than immediate imprisonment would be imposed only in the most unusual of cases (eg Marris v The Queen [2003] WASCA 171, where the six counts all occurred over the space of one evening, the offender and complainant were unrelated, the offender was a particularly immature young man, the complainant was 13, and there was no question of any force, threat, or 'grooming'). Those sentences, we stress, are the range one would expect to see after a plea of guilty.
In VIM v The State of Western Australia, there were 44 counts of sexual abuse against two complainants. They were the appellant's stepdaughters. There was a trial and in relation to the first complainant, the appellant was convicted of 10 counts of rape and 10 of indecent assault. In relation to the second complainant, he was convicted of one count of rape, three counts of indecent assault and seven counts of sexual penetration without consent. He was sentenced to an effective total sentence of 6 years' imprisonment. He appealed against the convictions and the Crown appealed against the adequacy of the aggregate sentence imposed. The appeal against conviction was dismissed and the appeal against sentence allowed. The appellant was resentenced to an aggregate term of 10 years' imprisonment.
It is apparent from the conclusion reached by the court at [309] that the present sentences imposed upon the appellants fall within the range which is there the subject of the court's conclusion. That is, 10 years 2 months for MPD and 9 years 7 months for JD were well within the range 6 years 8 months to 12 years 8 months. That is the range in about two‑thirds of the cases which were reviewed and in which there was frequent or prolonged sexual offending against a child or children.
Again, it would be a mistake to suggest that the circumstances of any one case necessarily relate to the circumstances of another. Thus, in the present case, the facts are unique. The sentencing judge was required to fix upon a sentence which took into account all relevant factors.
In my opinion, all relevant factors were considered and the sentences imposed fell within the range of sentences which could be expected for offences of this nature. I would therefore dismiss ground 1.
Ground 2
This ground of appeal contends that the sentencing judge gave insufficient weight to the rehabilitation of the appellants. It is a ground which the respondent argues is without merit. It is put that a contention that the sentencing judge failed to give adequate weight to a factor is not a proper ground of appeal. Reliance is placed upon Vagh v The State of Western Australia [2007] WASCA 17 at [77] where McLure JA said:
As the sentencing Judge correctly observed, the appellant's conduct involved extremely serious offending; it was not isolated, it involved a reasonable amount of dangerous drugs and he played an important role in their distribution. There was a commercial aspect to his criminal behaviour which was somewhat entrepreneurial. Having regard to these matters together with the mitigating factors it cannot be said that the total sentence was disproportionate to the criminality of the conduct as a whole or outside the range of sentences imposed in this State: see Colangelo v The State of Western Australia [2004] WASCA 294; Yazdani v The State of Western Australia [2006] WASCA 221; Dixon v The State of Western Australia [2006] WASCA 255. The appeal must be dismissed.
The statement of Gibbs CJ in Mallet v Mallet (1984) 156 CLR 605 at 614 is to the following effect:
The meaning of the statement which is found in the authorities that an appellate court may interfere with an exercise of discretion when it reaches the clear conclusion that no weight, or no sufficient weight, has been given to relevant considerations was explained by Latham CJ in Lovell v. Lovell (13), as follows
'If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion. . . unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.'
Counsel for the appellants has misunderstood this passage and, in truth, the ground of appeal as formulated is not a proper ground of appeal. Nevertheless, the court allowed the matter to be argued and I shall deal with the particulars to the ground.
The first particular contends that the sentencing judge overlooked the fact that the appellants had, at significant expense and effort, successfully completed the SafeCare programme. In point of fact, they had completed three or four modules and they were unable to complete the final module because they were sentenced to imprisonment. I have already dealt with this contention.
The second particular contends that, as a matter of principle, a significant discount on sentence should have been given because of the appellants' engagement in rehabilitation. This ground effectively contends that the discount of 20% stated by the sentencing judge was an inadequate reflection of the combined mitigating factors of the guilty pleas and the rehabilitation in which the appellants had been engaged.
Generally speaking, offenders in sexual assault cases are 'rewarded' for fast‑track pleas of guilty by a reduction in sentence which usually falls somewhere between 20% and 35%, depending on the circumstances. However, this range is:
… merely the usual range in the case of fast track pleas. In particular cases, the reduction might be less, even substantially so in the case of a late plea and an absence of any real remorse … The amount of the reduction is discretionary and the sentencing judges 'must be accorded a wide measure of latitude which will be respected by appellate courts': [Citations omitted.]
See H v The State of Western Australia [2006] WASCA 53 [9] (Steytler P) and cases cited therein.
In considering the pleas of guilty in the present case, it has to be appreciated that they were not fast‑track pleas. They came approximately 11 months after the arrest of the appellants. The appellants had been endeavouring to negotiate pleas of guilty to certain offences, but not others. The ones to which they would not plead guilty in the first instance were those relating to their co‑accused.
The appellants refused to co‑operate with investigating police in relation to the co‑accused. In particular, they refused to give evidence against them. This had the effect that the complainant was required to testify in the trial of the co‑accused. The pleas of guilty of the appellants must therefore be seen in the light of those facts. In my opinion, they lessen the import of the pleas.
There was, of course, the factor of rehabilitation. Attempts had been made by both appellants at rehabilitation through the SafeCare programme. However, I have already pointed out that it was only after their arrest that the appellants participated in the program. Nevertheless, it was a factor in their favour and in mitigation of sentence.
A discount of only 20% for 'all the matters of mitigation' was at the lowest end. Arguably, it was lower than it should have been. The question, however, is not whether the percentage discount was adequate, but whether the sentences imposed upon the appellants were, in the circumstances of the case, in breach of the totality principle. In considering that question, the issue is the overall criminality of the conduct of the appellants. That issue raises specifically the question of totality, to which I shall turn shortly.
The third particular of ground 2 contends that the sentencing judge erred in refusing to grant bail to the appellants pending their sentence, in order that they might complete the fourth and final module in the SafeCare program. This particular is not a competent ground of appeal in any sense. The appellants cannot appeal against refusal to grant bail pending sentence in the context of an appeal against sentence. An offender's right of appeal to the Court of Appeal is against the sentence imposed on the offender, or any order made as a result of the conviction (Criminal Appeals Act 2004 (WA) s 23(1)(b)) and no other. It is therefore unnecessary to deal with this contention.
Totality
In the end, this case is about totality. That much was conceded by counsel for the appellants during the course of argument before this court.
The totality principle is well established and it has been the subject of discussion in innumerable cases. A definitive statement of it is contained in Mill v The Queen (1988) 166 CLR 59 at 62 ‑ 63, where the following passage from Thomas: Principles of Sentencing (2nd ed, 1979) at pages 56 ‑ 57 was approved.
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: `when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
In Jarvis v The Queen (1993) 20 WAR 201, Ipp J elaborated upon the principle by saying at 206 ‑ 207:
[I]n taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: Wicks v R (1989) 3 WAR 372 at 379 to 380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos at 301 by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: Veen v R (No 2) (1988) 164 CLR 465; Evangelista and Laporte v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
Consideration of the total criminality of the conduct of each of the appellants in the present case leads me to the view that the aggregate sentences imposed upon each of them were within the range of sentences that could have been imposed. The offences committed against the complainant were very serious. Notwithstanding the fact that they fell short of penile penetration of the vagina, there was a range of sexual activities performed by the appellants on the complainant when she was of a young and tender age, and over a significant period. In terms of her future welfare, it is obvious that the offences are likely to have a long and far‑reaching effect. This fact has been recognised by the court in recent times: VIM v The State of Western Australia at [289] ‑ [292].
Perhaps the most culpable aspect of the appellants' criminality is the fact that the complainant was the natural child of JD and yet MPD (who was the stepfather) and JD engaged in a wide range of sexual activity with the child while she was between the ages of 12 and 13 years and in circumstances where that activity must have had a degrading and humiliating effect upon the complainant.
The effect of the offences is eloquently spoken of by the complainant in her victim impact statement, a portion of which is to the following effect:
It felt like at some points that I was on my own and that no one cared and that I had no one to turn to for support.
Because of what happened boundaries around sex where [sic] tested more than if this had not happened. Relationships became about a purely physical thing with no emotion attached.
I am starting to be able to deal with what happened in my own way. The hurt and the memories are always going to be there but I can escape them for a short amount of time through my horses.
It is almost unthinkable that, in an ordered society, a natural mother and stepfather could commit such offences against a child of such tender age, particularly when some of those offences were committed with the active involvement of the two co‑offenders, who were the subject of counts 13, 14, 15 and 16 on the indictment. Although we were told that those persons had been acquitted at trial, the confessions of the appellants make it clear that, from the perspective of the appellants, the co‑offenders were actively involved in the commission of those offences. The record of interview of the complainant also implicates them in those offences.
The decision in VIM v The State of Western Australia makes it clear that, in this decade, there has been a 'firming‑up' of sentences in cases involving sexual offences against children. That has been particularly so in cases of intra‑familial sexual offences. The sentences imposed upon the appellants in this case fall within the range of sentences identified in VIM v The State of Western Australia at [309] and, in all the circumstances of the case, I consider that they properly reflected the total criminality of the conduct of the appellants. I would therefore dismiss the appeals against sentence.
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