Nicholls v The State of Western Australia - [2019] WASCA 10

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NICHOLLS -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 10
CORAM:   BUSS P
MAZZA JA

HEARD:   6 DECEMBER 2018
DELIVERED          :   16 JANUARY 2019
FILE NO/S:   CACR 167 of 2018
BETWEEN:   ROBERT WILLIAM NICHOLLS
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number             :   IND 1977 OF 2015

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of 3 counts of sexually penetrating a young woman whom he knew or ought to have known was an incapable person - Total effective sentence of 8 years' imprisonment - Totality principle

Legislation:

Criminal Code (WA), s 330(2), s 330(7)(a)

Result:

Application for an extension of time to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms S L Duce
Respondent	:	No appearance

Solicitors:

Appellant	:	Kate King Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Bennell v The State of Western Australia [2011] WASCA 174
Giglia v The State of Western Australia [2010] WASCA 9
KND v The State of Western Australia [2017] WASCA 36
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McAlpine v The State of Western Australia [2018] WASCA 195
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Roffey v The State of Western Australia [2007] WASCA 246
SJN v The State of Western Australia [2016] WASCA 215
Smith v The State of Western Australia [2010] WASCA 176

JUDGMENT OF THE COURT:

The appellant has applied for an extension of time to appeal and leave to appeal against sentence.
The appellant was charged on indictment with four counts of sex offending.
Count 1 alleged that on 15 March 2015, at a town in rural Western Australia (the Town), the appellant sexually penetrated R, who he then knew or ought to have known was an incapable person, by penetrating her vagina with his finger, contrary to s 330(2) of the Criminal Code (WA) (the Code).
Count 2 alleged that on 16 March 2015, at the Town, the appellant sexually penetrated R, who he then knew or ought to have known was an incapable person, by penetrating her anus with his finger, contrary to s 330(2) of the Code.
Count 3 alleged that on the same date and at the same place as in count 2, the appellant sexually penetrated R, who he then knew or ought to have known was an incapable person, by penetrating her vagina with his finger, contrary to s 330(2) of the Code.
Count 4 alleged that on the same date and at the same place as in count 2, the appellant sexually penetrated R, who he then knew or ought to have known was an incapable person, by penetrating her vagina with his penis, contrary to s 330(2) of the Code.
On 8 February 2018, after a trial before Birmingham DCJ and a jury, the appellant was convicted of counts 1, 3 and 4 and acquitted of count 2.
On 10 May 2018, the trial judge imposed terms of immediate imprisonment as follows:
(a)count 1: 2 years 6 months;
(b)count 3: 4 years; and
(c)count 4: 5 years 6 months.
His Honour ordered that the sentence for count 1 be served cumulatively upon the sentence for count 4 and that the sentence for count 3 be served concurrently with the sentence for count 4. The total effective sentence was 8 years' imprisonment. A parole eligibility order was made.
The sole ground of appeal alleges that the total effective sentence of 8 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 21 November 1951. He was aged 63 at the time of the offending and was 66 when sentenced.
The victim, R, had a chronological age of 20 when the offending occurred. However, at all material times, R has had a significant intellectual impairment. She has a full score IQ of 40. R was examined by Dr Phil Watts, an Associate Professor in Clinical Psychology. Dr Watts was of the opinion that all aspects of R's ability to look after herself show a moderate to severe impairment. R did not have a concept of the nature of sex. Consequently, although she was not formally assessed, Dr Watts considered that R was unable to guard herself against exploitation. She was 'very concrete, very child-like'. R required a carer to manage all aspects of her general functioning.
In 2015, R lived with her father and step-mother in a caravan park at the Town. The appellant moved to the Town about six weeks before the offending. He became friends with R's father and step-mother.
On 15 March 2015, the appellant, R and R's step-mother were at a beach near the Town. They swam in the ocean. The step-mother returned to the caravan park. The appellant remained with R. R's father arrived at the beach and saw the appellant and R in the water together. R was close to the appellant. She was on his lap and she had her arm around his neck. When he saw R's father, the appellant moved away quickly from R. When the appellant and R were close together in the water the appellant penetrated R's vagina with his finger. That conduct constituted count 1 on the indictment.
On 16 March 2015, R's father left for work at about 6.15 am and her step-mother left for work at about 7.00 am. The appellant knew that they had departed and that R was alone in her caravan. He visited R and told her to have a shower and come to his caravan. R complied. When R arrived at his caravan, the appellant removed her pants. The appellant lay on top of R, on his bed, and sexually penetrated her twice. First, the appellant penetrated R's vagina with his finger. That action caused R to suffer pain and bleeding. Secondly, the appellant penetrated R's vagina with his penis. That conduct constituted counts 3 and 4 on the indictment.
The appellant admitted at the trial that he knew at the time of the alleged offending that R was an incapable person, but he denied that any of the offending had occurred.

The trial judge's sentencing remarks

The trial judge found, on the basis of medical evidence adduced by the State at the trial, that the appellant's sexual penetration of R was forceful. A medical practitioner who examined R shortly after the offending noticed a half-centimetre by half-centimetre abrasion in the area between the labia minora and, also, a one centimetre laceration of the left wall of the lower vagina. The medical practitioner was of the opinion that those injuries were significant. His Honour had no doubt that the injuries in question occurred as a result of the appellant's sexual penetration of R.
His Honour said that the appellant's offending was serious. The appellant knew that R had a significant intellectual impairment. The appellant was, in the circumstances, in a position of trust. He socialised with R's father and step-mother. He was trusted by them to have some unsupervised contact with R. She was very vulnerable.
The trial judge said that the offending, the subject of count 1 on 15 March 2015, may have been spontaneous or opportunistic. However, the offending the subject of counts 3 and 4 on 16 March 2015 was of a different character. The appellant was emboldened by what he had done the previous day.
His Honour noted that the sexual penetrations on 16 March 2015 were committed in the appellant's caravan. R was 'isolated and away from any help' (ts 582). The offending was forceful and prolonged. It involved 'some degree of violence insofar as … [the appellant] wouldn't let her go … kept pushing her down on the bed [and] wouldn't stop' (ts 582). R was 'most vulnerable' and the appellant 'took advantage of that circumstance for [his] own sexual gratification' (ts 582).
A victim impact statement prepared on R's behalf by a counsellor indicated that R is now fearful of being away from her father and step‑mother and is fearful of being alone with others. She is hypervigilant in relation to her safety. She has become 'very clingy' (ts 583).
The appellant was born in Kalgoorlie. He completed year 10 at school. The appellant then undertook an apprenticeship with the Government railways. He has worked as a mechanic, an interstate truck driver and a driver of earthmoving equipment. Generally, the appellant has been gainfully employed.
The appellant has been married for about 25 years. He has no children of that marriage, but his wife has adult children and grandchildren from a previous marriage.
The information before the trial judge included a number of expert reports. A report dated 2 March 2018 from a general medical practitioner, Dr Greg Dawson, states that the appellant's general health is poor. He is overweight and suffers from type 2 diabetes and hypertension. He has had strokes. A psychological report dated 3 May 2018 from Ms Wendy Wager indicates that the appellant continues to deny that he committed the offences in question. Ms Wager said that the appellant's motivation for the offending therefore remained unknown and it was difficult to ascertain what may have underpinned his offending. Ms Wager noted that the appellant was taking medication for diabetes, hypertension, high cholesterol and depression. A neurological report dated 15 February 2018 from Dr Thomas Chemmanam indicates that the appellant suffered a stroke in October 2015 and another stroke in March 2016. He has some altered sensation on the right side (face and arm) and a left superior quadrantanopia. He has some ongoing intermittent neurological symptoms in the form of headache, slurred speech and some cognitive symptoms. However, Dr Chemmanam was of the view that those symptoms were psychogenic (depression) related rather than attributable to recurrent strokes or other neurological causes. Ms Wager made enquiries of the acting director of health services within the prison system and was informed that the appellant will receive appropriate care for his existing (and any future) medical conditions from the prison health service.
His Honour referred to written references he had received as to the appellant's character. The authors of those references spoke well of the appellant, but his Honour noted that the authors knew nothing of the offending conduct.
The appellant had a prior criminal record. However, apart from two offences he committed in March 2015, the convictions were old. The offences in March 2015 involved a failure to ensure the safekeeping of firearms or ammunition. The trial judge was of the view that the appellant's criminal history, while not an aggravating factor for the current offences, demonstrated that he was not entitled to any leniency for good character.
His Honour took into account the appellant's age and health as relevant sentencing factors, but his Honour considered that the appellant's medical conditions were able to be appropriately managed within the prison system.
The trial judge said that the appellant had not evinced any remorse for his offending.

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 8 years' imprisonment infringed the first limb of the totality principle.
Originally, the appellant had relied on an additional ground which alleged that the individual sentences were manifestly excessive. However, at the hearing of the application, counsel for the appellant abandoned that ground (appeal ts 2).
Counsel for the appellant submitted that the total effective sentence of 8 years' imprisonment was 'too severe having regard to the overall criminality involved in the offences viewed in their entirety and all the circumstances of the case, including those referable to the appellant personally'.
Counsel accepted (properly, in our opinion) at the hearing of the application that the appellant's offending was very serious and was not mitigated by pleas of guilty or any remorse. If there was any mitigation it arose from the appellant's age combined with his medical problems, but the evidence before the trial judge was that all of his medical problems could be managed in prison (appeal ts 3).

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.[1] 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.[2]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] 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 sexually penetrating a person who the offender knows or ought to know is an incapable person, contrary to s 330(2) of the Code, is, relevantly, 14 years' imprisonment. See s 330(7)(a) of the Code.
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 sex offending (including, in particular, offending against s 330 of the Code) 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.
A significant feature of s 330 of the Code is the protection it affords to a class of people who, by virtue of mental impairment, are vulnerable to sexual exploitation and may be unable to understand the nature of sexual activity or protect themselves from those who wish to take advantage of their vulnerability. The potential adverse consequences to a victim of an offence under s 330 are very serious. See Bennell v The State of Western Australia.[3]
[3] Bennell v The State of Western Australia [2011] WASCA 174 [38] - [39] (Mazza J; McLure P & Murphy JA agreeing).
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 incapable people.
The only occasions on which this court has considered sentences imposed for offending against s 330 of the Code are Bennell and KND v The State of Western Australia.[4] However, some limited additional assistance, in determining the appropriate sentencing range, may be gained from a consideration of the general sentencing practice in relation to the offence of sexual penetration without consent, contrary to s 325(1) of the Code. The maximum penalty for an offence against s 325(1) is 14 years' imprisonment.
[4] KND v The State of Western Australia [2017] WASCA 36.
We have had regard to:
(a)the sentencing outcomes in Bennell and KND;
(b)the sentencing outcomes in a number of cases of offending against s 325(1) of the Code, including SJN v The State of Western Australia[5] and the decisions referred to in that case; and
(c)other cases cited by counsel for the appellant.
[5] SJN v The State of Western Australia [2016] WASCA 215.
If, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases or an insufficient number of 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 or insufficient 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;[6] McAlpine v The State of Western Australia.[7]
[6] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).
[7] 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.[8]
[8] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
It is apparent from our account of the facts and circumstances of the offending and the trial judge's unchallenged findings of fact and sentencing remarks that the appellant's overall offending was very serious. The victim, R, was highly vulnerable. The offending has had a traumatic and ongoing impact upon her.
The appellant was, of course, entitled to proceed to trial. However, he was unable to claim the mitigation that pleas of guilty would have brought.
The appellant was not youthful or inexperienced for sentencing purposes.
The appellant was not of prior good character. He was not remorseful. No victim empathy was apparent.
There was limited mitigation. The appellant had a good work ethic. He was aged 63 at the time of the offending and was 66 when sentenced. The appellant suffers from some health problems, but those problems are able to be dealt with adequately in a custodial setting. See also Smith v The State of Western Australia[9] as to the statutory obligation of prison authorities to ensure that medical care and treatment is provided to prisoners. Nevertheless, the appellant's age and health were, to a degree, mitigating.
[9] Smith v The State of Western Australia [2010] WASCA 176 [59] - [68] (Buss JA; McLure P & Mazza J agreeing).

We are satisfied that it was necessary for his Honour to order that the sentence for count 1 be served cumulatively upon the sentence for count 4 in order properly to mark the very serious nature of the appellant's overall offending in the context of all relevant facts and circumstances and all relevant sentencing factors.
In our opinion, the total effective sentence of 8 years' imprisonment did not infringe the first limb of the totality principle. An aggregate sentence of that length was required in order properly to reflect the very serious nature of the appellant's overall offending and to give effect to the primary sentencing considerations in the present case, namely appropriate punishment of the appellant and general deterrence, having regard to the need to protect incapable people. 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 objective seriousness of the overall offending, the vulnerability of the victim, the general pattern of sentencing for offences of this or a similar kind, the appellant's personal circumstances and the limited mitigation.
It is not reasonably arguable that error by the trial 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.

Conclusion

The ground of appeal has no reasonable prospect of success. Leave to appeal should be refused. It would be pointless, having regard to the absence of merit in the ground of appeal, to grant an extension of time to appeal. The application should be dismissed. 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
Associate
16 JANUARY 2019