Murphy v The State of Western Australia
[2013] WASCA 178
•12 AUGUST 2013
MURPHY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 178 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:29/2012 | 4 JULY 2013 | |
| Coram: | McLURE P BUSS JA HALL J | 12/08/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused on grounds 1, 2 and 3 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANNY MURPHY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Multiple sexual offences Attempting to pervert the course of justice Complainants were foster children of the appellant Manifest excess Totality Turns on own facts |
Legislation: | Criminal Code (WA), s 143, s 320(4), s 321 Sentencing Act 1995 (WA), s 9AA(4), s 76, s 81 |
Case References: | Cummins v The State of Western Australia [2006] WASCA 201 Dillon v The State of Western Australia [2010] WASCA 135 Dudzik v The State of Western Australia [2012] WASCA 195 Fazari v The State of Western Australia [2012] WASCA 176 Ferry v The Queen [2003] WASCA 207 Giglia v The State of Western Australia [2010] WASCA 9 GJT v The State of Western Australia [2011] WASCA 263 KJW v The State of Western Australia [2012] WASCA 162 MJS v The State of Western Australia [2011] WASCA 112 PDT v The State of Western Australia [2012] WASCA 134 R v Faithfull [2004] WASCA 39 RFS v The State of Western Australia [2012] WASCA 58 Roffey v The State of Western Australia [2007] WASCA 246 SAP v The State of Western Australia [2011] WASCA 155 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MURPHY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 178 CORAM : McLURE P
- BUSS JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 1464 of 2010
Catchwords:
Criminal law - Appeal against sentence - Multiple sexual offences - Attempting to pervert the course of justice - Complainants were foster children of the appellant - Manifest excess - Totality - Turns on own facts
Legislation:
Criminal Code (WA), s 143, s 320(4), s 321
Sentencing Act 1995 (WA), s 9AA(4), s 76, s 81
Result:
Leave to appeal refused on grounds 1, 2 and 3
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S D Freitag
Respondent : Ms S H Linton
Solicitors:
Appellant : Dawson Davies
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cummins v The State of Western Australia [2006] WASCA 201
Dillon v The State of Western Australia [2010] WASCA 135
Dudzik v The State of Western Australia [2012] WASCA 195
Fazari v The State of Western Australia [2012] WASCA 176
Ferry v The Queen [2003] WASCA 207
Giglia v The State of Western Australia [2010] WASCA 9
GJT v The State of Western Australia [2011] WASCA 263
KJW v The State of Western Australia [2012] WASCA 162
MJS v The State of Western Australia [2011] WASCA 112
PDT v The State of Western Australia [2012] WASCA 134
R v Faithfull [2004] WASCA 39
RFS v The State of Western Australia [2012] WASCA 58
Roffey v The State of Western Australia [2007] WASCA 246
SAP v The State of Western Australia [2011] WASCA 155
1 McLURE P: This is an appeal against sentence. The appellant was convicted after trial on two counts of indecent dealing with a child (B) of or over the age of 13 years but under the age of 16 years, contrary to s 321(4) of the Criminal Code (WA) (the Code), two counts of sexual penetration of B, contrary to s 321(2) of the Code, one count of indecent dealing with a child (K) under the age of 13 years, contrary to s 320(4) of the Code and one count of attempting to pervert the course of justice, contrary to s 143 of the Code.
2 The appellant was acquitted on three counts (5, 7 and 8) alleging other sexual offences against the complainants.
3 B (born on 8 April 1995) and K (born on 27 March 1998) were siblings in the foster care of the appellant and his then (second) wife.
4 On 12 January 2012 the appellant was sentenced by Stone DCJ to 18 months' imprisonment on each count of indecent dealing (counts 1, 4 and 6), 3 years and 6 months' imprisonment on each count of sexual penetration (counts 2 and 3) and 3 years' imprisonment for attempting to pervert the course of justice (count 9). The sentences on counts 2 (sexual penetration of B), 6 (indecent dealing of K) and 9 (attempting to pervert the course of justice) were ordered to be served cumulatively with the balance to be served concurrently, resulting in a total sentence of 8 years' imprisonment.
5 The appellant relies on four grounds of appeal, only one of which (ground 4) has received a grant of leave to appeal. The application for leave on the other grounds has been referred to the hearing of the appeal.
6 The grounds of appeal are to the effect that (1) the sentences of 18 months' imprisonment on each of counts 1, 4 and 6 for indecent dealing are manifestly excessive; (2) the sentences of 3 years and 6 months' imprisonment on each of counts 2 and 3 for sexual penetration are manifestly excessive; (3) the sentence of 3 years' imprisonment on count 9 for attempting to pervert the course of justice is manifestly excessive; and (4) the total sentence of 8 years' imprisonment breaches the totality principle.
7 The facts found by the sentencing judge are as follows. B and K together with another sibling (J), lived with the appellant and his wife at the family home in Kelmscott along with his wife's daughter from a prior relationship. In late 2008 the appellant's wife took her daughter to England for three weeks. The offending the subject of count 1 took place in her absence. In a shed at the Kelmscott property the appellant cuddled and tongue-kissed B, then touched her bottom with his hands over her clothing (count 1).
8 In 2009 B, aged 14, and J were helping the appellant renovate a house. The appellant pulled B's pants and underpants to her knees and inserted his finger into her vagina while masturbating himself (count 2). After sucking his finger and inserting it again into B's vagina several times, the appellant performed cunnilingus on B, only stopping when J returned (count 3). Later the same day the appellant put his hand inside B's bra and touched her nipple (count 4). The appellant told B that if she told anyone about what he had done, she would be kicked out of the family home.
9 On 11 April 2010, K and B swapped beds, with the then 12-year-old K sleeping on the top bunk bed and B on the lower bunk. The appellant pulled down K's singlet and bra, removed her dressing gown and touched her breasts with his hands (count 6).
10 After K told B what the appellant had done, the two girls reported the abuse to the appellant's wife who then notified police.
11 The appellant left the Kelmscott house after he was charged. In contravention of his bail conditions, the appellant continuously contacted family members. Between 16 April 2010 and 11 August 2010 the appellant made 260 telephone calls from his mobile to those of his wife and B. Further, the appellant met with B and J on a number of occasions, telephoned B multiple times each day, bought her gifts and asked her to drop the charges, telling her that bad things would happen to him in prison.
12 The appellant's stepdaughter and her girlfriends gave evidence of the appellant's frequent nocturnal visits to the bedroom of B and K. The sentencing judge found that the offences of which he had been convicted were not isolated, but part of a continuing course of such conduct by the appellant. He also found that the appellant used the pretext of taking K to the toilet at night as an opportunity to sexually molest B.
13 The appellant was aged 49 at the time of sentencing. He had completed Year 11 at school and worked in varying occupations, including working with children at the Rocky Bay Crippled Children's Association.
14 The appellant had no prior convictions. He also had strong support from his first wife, his children from his first marriage, and friends.
15 The sentencing judge accepted the statement of the author of the pre-sentence report that the appellant's attitude towards the victims of his offending behaviour was derisive and that he did not offer any expressions of regret or victim empathy. The sentencing judge found that he had shown no remorse.
Relevant legal principles
16 The sentencing principles are not in dispute. This court can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law. Manifest excess relies on implying an error from the sentence itself. The question is whether the sentence is unreasonable or unjust.
17 When considering whether a sentence is manifestly excessive, regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for offences of that type, the seriousness of the circumstances of the offence and the offender's antecedents.
18 Regard is had to sentences customarily imposed in order to ensure broad consistency in the sentencing of offenders who have committed similar types of offences. Broad consistency is assessed by reference to all relevant sentencing considerations, including matters personal to the offender.
19 The totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. The practical effect of the totality principle is ordinarily to arrive at a total effective sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
20 Further, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of other counts and its contribution to the total effective sentence: Giglia v The State of Western Australia [2010] WASCA 9 [40].
Ground 1 - indecent dealing
21 The appellant claims that the sentence of 18 months' imprisonment for the indecent dealing counts is manifestly excessive, both in type and length.
22 Counsel for the appellant accepted that it is not permissible to order suspended imprisonment, conditional or otherwise, if the offender is serving or is yet to serve a term of imprisonment that is not suspended: s 76(3) and s 81(3) of the Sentencing Act 1995 (WA). It was put on behalf of the appellant that, looked at in isolation, a suspended term of imprisonment would be an appropriate sentencing disposition for the indecent dealing offences and that should be reflected in greater concurrency and thus a lower total sentence.
23 There are two difficulties with that approach. First, the offender's conduct as a whole informs an assessment of the appropriate sentence for the individual offences. In particular, it informs an assessment as to what is required to further recognised sentencing objectives such as deterrence and rehabilitation. Moreover, it is wrong to look at an individual offence in isolation when considering the appropriate total sentence.
24 Second, the approach is inconsistent with the scheme of the Sentencing Act. In addition to the prohibition on suspension when a person is, or will be, serving a term of immediate imprisonment, s 76(2) and s 81(2) provide that suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. That is, the length of the appropriate term of imprisonment is not to be affected by whether or not the term is to be suspended, conditionally or otherwise. It being wrong to vary an individual sentence by reference to the non-availability of suspension, the same must apply to the determination of the total sentence.
25 The appellant's alternative submission is that the sentences are manifestly excessive because of the length of the term. I have reviewed the sentences imposed in recent times for the offence of indecent dealing, including RFS v The State of Western Australia [2012] WASCA 58; GJT v The State of Western Australia [2011] WASCA 263; PDT v The State of Western Australia [2012] WASCA 134; SAP v The State of Western Australia [2011] WASCA 155; KJW v The State of Western Australia [2012] WASCA 162; MJS v The State of Western Australia [2011] WASCA 112 and Ferry v The Queen [2003] WASCA 207. The significant mitigating factors in RFS, GJT, PDT and SAP, including but not limited to early pleas of guilty, are absent in this case. When regard is had to all relevant sentencing variables, there is no reasonable foundation for a contention that a sentence of 18 months for the indecent dealing offences in this case is not broadly consistent with current sentencing standards.
26 Although towards the upper end of the discretionary range, it is not reasonably arguable that the sentences of 18 months are manifestly excessive in type or length. Leave to appeal on this ground should be refused.
Ground 2 - sexual penetration
27 The appellant contends that the sentences of 3 years and 6 months' imprisonment on each of counts 2 and 3 are manifestly excessive. The appellant's short submissions on this ground do not travel beyond mere assertion. It is not suggested by reference to any nominated cases that the sentences are outside the customary or sound discretionary range. They are not. This ground is also without merit and leave to appeal should be refused.
Ground 3 - attempt to pervert course of justice
28 The maximum penalty for the offence of attempting to pervert the course of justice is 7 years' imprisonment. A sentence of immediate imprisonment is ordinarily imposed because the offence strikes at the very heart of the administration of justice: Dillon v The State of Western Australia [2010] WASCA 135 [29]; Dudzik v The State of Western Australia [2012] WASCA 195.
29 There is no tariff for the offence because of the broad spectrum of behaviour that can constitute an attempt to pervert the course of justice. Sentences customarily imposed range from a term of imprisonment of 6 months to a term of 3 years and 4 months (5 years pre-transitional). However, sentences of 2 years and 8 months and 2 years have been imposed following early guilty pleas entered before the imposition of the 25% discount cap in s 9AA(4) of the Sentencing Act: Cummins v The State of Western Australia [2006] WASCA 201; Dillon; Dudzik; Fazari v The State of Western Australia [2012] WASCA 176.
30 The sentencing judge characterised the appellant's offending as a very serious instance of its type. Indeed it is. The offence was committed in breach of protective bail conditions designed to prevent the very conduct that occurred. The appellant's conduct persisted over a lengthy period. It involved multiple daily telephone calls to his wife and B, gifts for B and a number of meetings with B; this was insidious pressure calculated to persuade the complainants to drop the charges against him. The appellant targeted the same vulnerable child he had sexually abused, which was a further gross breach of the trust which had been reposed in him. The vulnerability of the complainants was heightened by the fact that they were foster children placed in the care of the appellant and his wife by the Department of Child Protection. The sentencing judge found that the appellant showed no remorse or insight into his offending behaviour.
31 There is no reasonably arguable claim that the sentence of 3 years' imprisonment, in the circumstances of this case, is manifestly excessive. As ground 3 has no reasonable prospect of success, leave to appeal must be refused.
Ground 4 - totality
32 The interaction between the principles relating to the imposition of orders for cumulation and concurrence and the totality principle are well known: R v Faithfull [2004] WASCA 39 [25] - [28]. Putting aside issues of totality, the orders for cumulation and concurrence made by the sentencing judge are entirely appropriate. The cumulation of sentences for offences against different victims is orthodox. Further, as a matter of principle, the sentence for an offence of attempting to pervert the course of justice should be ordinarily be made wholly cumulative with the sentence for the offence(s) to which the attempt was directed: Dudzik [30].
33 The only relevant issue is whether, notwithstanding the appropriateness of the individual sentences and the orders for cumulation, the total effective sentence is disproportionate to the total criminality of the offending as a whole. As with manifest excess, the question is whether error can be implied because the total sentence is unreasonable or unjust.
34 I accept that the total sentence is close to the upper limit of the sound discretionary range. However, apart from his prior good character, there is nothing in the appellant's favour by way of mitigation. Further, the sexual offences are representative and the circumstances of the offending as a whole are undoubtedly serious. Having regard to all relevant matters, I am not satisfied that the total sentence infringes the totality principle.
Conclusion
35 I would refuse leave to appeal on grounds 1, 2 and 3 and dismiss the appeal.
36 BUSS JA: I agree with McLure P.
37 HALL J: I agree with McLure P.
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