Mule v The State of Western Australia
[2019] WASCA 9
•16 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MULE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 9
CORAM: BUSS P
MAZZA JA
HEARD: 14 NOVEMBER 2018
DELIVERED : 16 JANUARY 2019
FILE NO/S: CACR 75 of 2018
BETWEEN: VINCENZO MULE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STONE DCJ
File Number : IND 1524 of 2016
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of 3 counts of sexual penetration of a child under the age of 13 years and 2 counts of unlawful detention - Two child victims - Total effective sentence of 10 years' imprisonment - Totality principle
Legislation:
Criminal Code (WA), s 320(2), s 333
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr M R Gunning |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Gunning Young Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
EXF v The State of Western Australia [2015] WASCA 118
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
Giglia v The State of Western Australia [2010] WASCA 9
GMS v The State of Western Australia [2009] WASCA 107
GO v The State of Western Australia [2016] WASCA 132
JDF v The State of Western Australia [2016] WASCA 221
Juma v The State of Western Australia [2011] WASCA 54
KAT v The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367
KMB v The State of Western Australia [2010] WASCA 212
LJH v The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The State of Western Australia [2006] WASCA 256
McAlpine v The State of Western Australia [2018] WASCA 195
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
PP v The State of Western Australia [2004] WASCA 144
Roffey v The State of Western Australia [2007] WASCA 246
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
Van Zyl v The State of Western Australia [2017] WASCA 1
Woods v The Queen (1994) 14 WAR 341
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was convicted, on his pleas of guilty, of five counts in an indictment.
Count 1 alleged that on 19 April 2016, at North Perth, the appellant unlawfully detained a boy, A, contrary to s 333 of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1, the appellant unlawfully detained a girl, J, contrary to s 333 of the Code.
Count 3 alleged that on the same date and at the same place as in count 1, the appellant sexually penetrated A, a child under the age of 13 years, by introducing the appellant's penis into A's mouth, contrary to s 320(2) of the Code.
Count 4 alleged that on the same date and at the same place as in count 1, the appellant sexually penetrated J, a child under the age of 13 years, by introducing the appellant's penis into J's mouth, contrary to s 320(2) of the Code.
Count 5 alleged that on the same date and at the same place as in count 1, the appellant sexually penetrated J, a child under the age of 13 years, by engaging in cunnilingus, contrary to s 320(2) of the Code.
On 4 October 2017, Stone DCJ imposed terms of immediate imprisonment as follows:
(a)count 1: 2 years;
(b)count 2: 2 years;
(c)count 3: 4 years;
(d)count 4: 4 years; and
(e)count 5: 4 years.
The sentencing judge ordered that the sentences for counts 1, 3 and 4 be served cumulatively and that the sentences for counts 2 and 5 be served concurrently with each other and concurrently with the sentences on the other counts. The total effective sentence was therefore 10 years' imprisonment. The total effective sentence was backdated to 20 April 2016. A parole eligibility order was made.
The sole ground of appeal alleges that the total effective sentence of 10 years' imprisonment infringed the first limb of the totality principle.
We would refuse leave to appeal. Our reasons are as follows.
The facts and circumstances of the offending
The appellant was born on 14 September 1963. He was aged 52 at the time of the offending.
The boy victim, A, was born in March 2011. The girl victim, J, was born in May 2011. When the offending occurred A was aged 5 and J was aged 4.
On 19 April 2016, at about 11.00 am, the appellant entered a fenced area in a playground at a supervised childcare facility in North Perth. A staff member of the facility noticed the appellant and asked him to stop smoking. At about 11.20 am, the appellant enticed A and J to leave the facility with him. The parents of the children had placed them at the facility earlier in the day.
The appellant walked with the children to his parents' home elsewhere in North Perth. They travelled a distance of about 750 m.
The appellant took the children to a shed at the rear of the property which he used as his residence. He gave each of the children part of an icy pole. After A had consumed his icy pole, the appellant inserted his erect penis into A's mouth and made him perform fellatio. The appellant then placed his erect penis in J's mouth and made her perform fellatio. Next, the appellant removed J's pants and underwear and performed cunnilingus on her.
After he had finished his sexual offending against the children, the appellant walked with the children to Hyde Park and abandoned them. At about 12.00 noon, J approached a woman who was in Hyde Park eating her lunch. J informed the woman that they had been taken to Hyde Park by a man they did not know.
Shortly afterwards, the children were taken to the police and conveyed to Child Abuse Squad officers. Interviews were conducted. The children were forensically examined by a medical practitioner at a hospital. J had a rash in the vicinity of her vagina that was consistent with rubbing by facial stubble.
The sentencing judge's sentencing remarks
The sentencing judge made the following findings and comments in his sentencing remarks:
(a)The appellant claimed 'complete amnesia' about the events of the day in question (ts 92). His Honour rejected the claim. His Honour was satisfied beyond reasonable doubt that the appellant was feigning amnesia to avoid the consequences of his actions and to avoid discussion with mental health professionals about the underlying reasons for his offending behaviour (ts 92).
(b)His Honour found that there were a number of aggravating factors which increased the appellant's culpability. First, the children were taken from a supervised childcare facility. There was an element of brazenness in the appellant's actions. Secondly, the children were vulnerable. The appellant was a stranger to them, but he was able to entice them to leave the facility and follow him. The appellant took advantage of their young age and the distraction of the childcare workers to lure the children away. Thirdly, the appellant took the children from a safe environment in which they were physically and emotionally secure and rendered them wholly reliant upon him. Fourthly, the appellant took the children to a place where they would not be disturbed. During the course of the offending the appellant gave or promised the children treats or rewards, including icy poles to eat and games to play. Fifthly, the sexual offending against each child occurred in the presence of the other child, and exposed each of them to further corruption and to concern for the other's well-being. Sixthly, the appellant persisted in the sexual offending despite the fact that the children disliked what was happening and wanted to leave. J cried. A said he could not breathe when the appellant put his penis into A's mouth. A said it hurt. Seventhly, there was an element of sexual gratification in the appellant's conduct. Eighthly, the appellant engaged in unprotected sex with each of the children. Ninthly, after the sexual offending the appellant abandoned the children in a park. Tenthly, the offending has had a significant detrimental impact on both children and their immediate families.
(c)Each of the children suffered a frightening ordeal. The long‑term psychological impact on the children was unknown and may not be known for some time. The victim impact statement from A's father indicated that A had endured medical examinations and psychological assessments and counselling. He had avoided some events at school, had developed a fear of the dark and had suffered nightmares for about six months. The offending also had a detrimental impact on A's sister and his parents. The victim impact statement from J's mother indicated that the offending had created extreme levels of emotional stress for J and her family. J and her mother have had ongoing counselling. J is apprehensive about attending childcare facilities and she has been absent from school.
(d)The appellant was aged 54 at the time of sentencing. In 2014 he separated from his wife. The appellant and his estranged wife have three adult children. The appellant's brother in law, with whom the appellant had a close relationship, died in 2014. The appellant's father died more recently. Several months prior to the offending the appellant's relationship with his girlfriend disintegrated. His Honour accepted defence counsel's submission that there had been a 'build-up of stresses' on the appellant leading up to the offending on 19 April 2016 (ts 96). The appellant had a happy childhood. His schooling was uneventful. He completed an apprenticeship as an electrician and was self-employed for a number of years. He had worked in a variety of businesses including as the proprietor of newsagencies. Since 2015, however, he had been in receipt of Centrelink benefits. The appellant has a prior criminal record. His Honour described the record as 'petty', but said the appellant was not entitled to any leniency for prior good character (ts 98).
(e)His Honour found that there were some mitigating factors. First, the appellant's pleas of guilty. The pleas avoided the necessity for the children to give evidence. His Honour allowed the appellant a discount of 15%, pursuant to s 9AA of the Sentencing Act 1995 (WA), for each plea of guilty. Secondly, his Honour accepted that the pleas of guilty were an expression of remorse on the appellant's part. Thirdly, there was some mitigation in the 'build-up of stresses' on the appellant leading up to the offending (ts 96).
The expert reports
The information before the sentencing judge included a psychiatric report dated 29 May 2017 from Dr Gosia Wojnarowska and a psychological report dated 28 May 2017 from Mr Nigel Cameron. Dr Wojnarowska said the appellant had a non-remarkable developmental history and adult life. She had not been able to diagnose the appellant as suffering from any psychiatric disorder. Dr Wojnarowska also said that '[d]ue to [the appellant's] lack of disclosure, it is difficult to comment [on whether the appellant] is sexually attracted to children and if diagnosis of paedophilia should be considered'. Of major concern was the fact that the appellant had abducted the children 'who were strangers to him, with one of them being a male, which indicates … a higher degree of deviance'. Various factors had to be addressed in the appellant's future treatment in order to decrease his risk of reoffending in a violent and sexual manner. Those factors included psychological adjustments (limited self‑awareness), the presence of anti-social traits, problems with substance abuse and social maladjustment (including unemployment and the lack of intimate relationships).
The sole ground of appeal: counsel for the appellant's submissions
As we have mentioned, the sole ground of appeal alleges that the total effective sentence of 10 years' imprisonment infringed the first limb of the totality principle.
Counsel for the appellant submitted that, although the individual sentences were not challenged, the total effective sentence was 'outside the range of other offending in circumstances [that were] far more serious'.
Counsel referred to a number of aspects of the appellant's offending:
(a)The duration of the offending, beginning with the appellant enticing the children from the supervised childcare facility and ending when he abandoned them at Hyde Park was less than one hour.
(b)The duration of the sexual offending was 'far shorter'.
(c)There were no threats, no grooming (apart from some promises), no physical injuries (apart from the rash in the vicinity of J's vagina) and no breach of trust 'over and above that of a stranger'.
(d)The offences were isolated, not representative of ongoing conduct and 'did not result in ongoing physical problems'.
Counsel for the appellant submitted that the case law indicates that:
(a)a total effective sentence of 10 years' imprisonment for child sex offending 'normally requires multiple complainants'; and
(b)the imposition of a total effective sentence of 10 years' imprisonment for child sex offending requires 'far more aggravating factors than [were] demonstrated in [the appellant's] case'.
Counsel referred to numerous previous decisions of this court including GMS v The State of Western Australia;[1] KMB v The State of Western Australia;[2] SWD v The State of Western Australia;[3] GHK v The State of Western Australia;[4] EXF v The State of Western Australia;[5] GO v The State of Western Australia;[6] LJH v The State of Western Australia;[7] JDF v The State of Western Australia;[8] Van Zyl v The State of Western Australia;[9] and KAT v The State of Western Australia.[10]
[1] GMS v The State of Western Australia [2009] WASCA 107.
[2] KMB v The State of Western Australia [2010] WASCA 212.
[3] SWD v The State of Western Australia [2012] WASCA 76.
[4] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178.
[5] EXFv The State of Western Australia [2015] WASCA 118.
[6] GOv The State of Western Australia [2016] WASCA 132.
[7] LJHv The State of Western Australia [2016] WASCA 155; (2016) 261 A Crim R 355.
[8] JDFv The State of Western Australia [2016] WASCA 221.
[9] Van Zylv The State of Western Australia [2017] WASCA 1.
[10] KATv The State of Western Australia [2017] WASCA 11; (2017) 264 A Crim R 367.
Counsel for the appellant conceded, however, that the cases to which he had referred were of 'very limited utility' and that the appellant's case was 'in a category of its own' (appeal ts 6).
The sole ground of appeal: its merits
A ground of appeal that alleges a breach of the totality principle asserts an implied or inferred error based on the sentencing outcome.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[11] Also, the severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia.[12]
[11] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[12] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
The maximum penalty for the offence of unlawfully detaining another person, contrary to s 333 of the Code, is 10 years' imprisonment.
The maximum penalty for the offence of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Code, is 20 years' imprisonment.
The primary sentencing considerations for offences of the kind committed by the appellant are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. See Woods v The Queen;[13] PP v The State of Western Australia;[14] M v The State of Western Australia.[15]
[13] Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J; Malcolm CJ & Seaman J agreeing).
[14] PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J; Malcolm CJ & Murray J agreeing).
[15] M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA; Steytler P & McLure JA agreeing).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
There is no 'tariff' for offences of the kind committed by the appellant (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors. See The State of Western Australia v Akizuki;[16] Juma v The State of Western Australia.[17]
[16] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3], [67] ‑ [69] (Steytler P).
[17] Juma v The State of Western Australia [2011] WASCA 54 [37] - [38] (McLure P, Newnes JA & Mazza J).
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence is not unreasonable or plainly unjust. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[18] McAlpine v The State of Western Australia.[19]
[18] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[19] McAlpine v The State of Western Australia [2018] WASCA 195 [54] (Buss P & Mazza JA).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[20]
[20] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
In our opinion, counsel for the appellant's concession that the previous decisions of this court to which he had referred were of 'very limited utility' and that the appellant's case was 'in a category of its own' (appeal ts 6) was properly made. The degree of seriousness of the appellant's overall offending, compared to other cases, depends on all of the relevant facts and circumstances and all of the relevant sentencing factors. For example, the number of complainants is, no doubt, a relevant consideration, but it is not necessarily, of itself, crucial or decisive in determining the length of a term of imprisonment.
Counsel for the appellant's submissions as to:
(a)the duration of the offending;
(b)the absence of threats;
(c)the limited grooming and the limited physical injuries; and
(d)the absence of a breach of trust 'over and above that of a stranger',
were accurate, but those matters were not mitigating. They merely indicated that the appellant's offending could conceivably have been worse.
The very serious character of the appellant's overall offending is apparent from our summary of the facts and circumstances of the offending and from our summary of the sentencing judge's sentencing remarks. His Honour's statement of the aggravating features of the offending encapsulates the egregious character of the appellant's overall criminal conduct.
It is apparent that there was some premeditation and planning by the appellant in that he was in the vicinity of the supervised childcare facility for about 20 minutes before he enticed the children to leave with him; he walked with the children for about 750 m to his place of residence before he sexually assaulted them; and he walked with the children from his home to Hyde Park before he abandoned them. The essence of the appellant's very serious criminality is to be found in those facts in combination with the aggravating factors mentioned by his Honour.
The appellant was not youthful or inexperienced for sentencing purposes. He was not of prior good character. The appellant did not engage openly with the psychiatrist or the psychologist in relation to the impulses which drove his offending.
The sentencing judge noted the mitigating factors.
In our opinion, the total effective sentence of 10 years' imprisonment did not infringe the first limb of the totality principle. An aggregate sentence of that length was necessary in order properly to reflect the very serious nature of the appellant's overall offending and to give effect to the primary sentencing considerations of personal and general deterrence, having regard to the need to protect vulnerable children. An accumulation of the individual sentences for counts 1, 3 and 4 was required. The total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the vulnerability of the children, the general pattern of sentencing for offending of this kind, the appellant's personal circumstances and the aggravating and mitigating factors.
It is not reasonably arguable that error by the sentencing judge in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence was not unreasonable or plainly unjust.
The ground of appeal has no reasonable prospect of success.
Conclusion
Leave to appeal should be refused. The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KL
Associate16 JANUARY 2019
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