Omc v The State of Western Australia
[2023] WASCA 86
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OMC -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 86
CORAM: BUSS P
MAZZA JA
HEARD: 22 MAY 2023
DELIVERED : 30 MAY 2023
FILE NO/S: CACR 9 of 2023
BETWEEN: OMC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SWEENEY DCJ
File Number : IND X & X of 2021
Catchwords:
Criminal law - Sexual offences - Application for leave to appeal against sentence - Appellant convicted of eight counts of indecent dealing with a child under 13 years, one count of attempted indecent dealing with a child under 13 years and one count of possession of child exploitation material - Whether total effective sentence of 6 years' imprisonment infringed first limb of totality principle
Legislation:
Criminal Code (WA), s 220, s 320(4), s 552
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | F Mehta |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Farah Mehta Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
ERA v The State of Western Australia [2013] WASCA 163
JAW v The State of Western Australia [2012] WASCA 7
JAW v The State of Western Australia [2016] WASCA 40
JDF v The State of Western Australia [2016] WASCA 221
JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209
Lakay v The State of Western Australia [2019] WASCA 46
LYN v The State of Western Australia [2019] WASCA 45
McNally v The State of Western Australia [2019] WASCA 93
MNA v The State of Western Australia [2020] WASCA 84
OTR v The State of Western Australia [No 2] [2022] WASCA 123
Roffey v The State of Western Australia [2007] WASCA 246
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
WNO v The State of Western Australia [2021] WASCA 141
JUDGMENT OF THE COURT:
The appellant was charged on an indictment (IND X of 2021) dated 19 September 2022 with 11 sexual offences against his then partner's daughter, who was, at all relevant times, a child aged between 10 and 11 years. He was convicted after trial of nine offences, being eight counts of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA) (the Code) (counts 1, 2, 3, 4, 5, 6, 8 and 9), and one count of attempted indecent dealing with a child under the age of 13 years, contrary to s 320(4) and s 552 of the Code (count 7). He was acquitted of two offences (counts 10 and 11).
At the sentencing hearing, the appellant was convicted on his late plea of guilty of one charge of possession of child exploitation material (CEM), contrary to s 220 of the Code. This charge was contained in a different indictment (IND Y of 2021).
On 8 December 2022, the appellant was sentenced by Sweeney DCJ in respect of all of the above offences to a total effective sentence of 6 years' imprisonment with parole eligibility backdated to commence on 23 September 2022. The details of the sentences are set out in the table below.
| Count (IND X of 2021) | Offence | Maximum penalty | Sentence imposed |
| 1 | On a date unknown between 31 October 2020 and 31 December 2020, the appellant indecently dealt with a child under 13 years, by touching her vagina with his hand. | 10 years' imprisonment | 18 months' imprisonment (concurrent) |
| 2 | On a date unknown between 31 December 2019 and 1 July 2020 the appellant indecently dealt with a child under 13 years, by touching her vagina with his hand. | 10 years' imprisonment | 18 months' imprisonment (concurrent) |
| 3 | On a date unknown between 30 May 2020 and 1 August 2020, the appellant indecently dealt with a child under 13 years, by touching her vagina with his hand. | 10 years' imprisonment | 2 years' imprisonment (head sentence) |
| 4 | On a date unknown between 31 December 2018 and 25 December 2020, the appellant indecently dealt with a child under 13 years, by touching her vagina with his hand. | 10 years' imprisonment | 2 years' imprisonment (concurrent) |
| 5 | On a date unknown between 30 April 2020 and 1 October 2020, the appellant indecently dealt with a child under 13 years, by touching her vagina with his hand. | 10 years' imprisonment | 18 months' imprisonment (concurrent) |
| 6 | On a date unknown between 30 April 2020 and 1 October 2020 the appellant indecently dealt with a child under 13 years, by touching her vagina with his hand. | 10 years' imprisonment | 2 years' imprisonment (cumulative) |
| 7 | On a date unknown between 30 April 2020 and 1 January 2021, the appellant attempted to indecently deal with a child under 13 years by attempting to touch her vagina with his hand. | 5 years' imprisonment | 12 months' imprisonment (concurrent) |
| 8 | On a date unknown between 31 December 2019 and 1 July 2020, the appellant indecently dealt with a child under the age of 13 years, by exposing his penis to her. | 10 years' imprisonment | 8 months' imprisonment (concurrent) |
| 9 | On a date unknown between 31 May 2019 and 1 January 2020, the appellant indecently dealt with a child under 13 years by touching her vagina with his hand. | 10 years' imprisonment | 2 years' imprisonment (cumulative) |
| Count (IND Y of 2021) | Offence | Maximum penalty | Sentence imposed |
| Count 1 | On 27 January 2021, at Geraldton, the appellant had possession of child exploitation material, namely 6 videos, on his Toshiba laptop. | 7 years' imprisonment | 12 months' imprisonment (concurrent) |
None of the individual sentences imposed by her Honour is challenged. The appellant seeks leave to appeal on two grounds which, in essence, allege that the total effective sentence infringes the first limb of the totality principle.
For the reasons that follow, the grounds have no reasonable prospects of succeeding. Leave to appeal must be refused and the appeal dismissed.
The facts
The appellant does not take any issue with the facts as found by the sentencing judge, which we summarise as follows.
The victim of all of the offences, save for the CEM offence, was the daughter of the appellant's then partner. The victim regarded the appellant as a father figure in her life. During the period of the offending, the victim was aged between 10 and 11 years. The appellant was aged between 30 and 31 years. The offences are representative of the appellant's conduct towards the victim. All of the offences were alleged to have occurred in the appellant's home, which he shared with his then partner and the victim.
We will summarise the facts of the offences in the same order as the sentencing judge.
Count 2 is the first time the appellant touched the victim on her vagina. The appellant was sitting on a couch with the victim when he touched her leg and then slid his hands down to her vagina, rubbing his finger back and forth on top of her pyjama shorts for, maybe, 20 seconds. The appellant told the victim that she could not tell anyone what he had done or he would be in big trouble and would not be in her life anymore. Further, he told her she would not be able to have 'such nice things'.[1] This was said in the context of the victim having no real relationship with her biological father.
[1] Sentencing ts 3.
Count 3 occurred when the victim was in her bed, either watching something or playing a game on her mobile telephone or iPad. The appellant came into the room, lay down behind the victim on her bed under the doona, and rubbed her vagina with his fingers, first over her pyjama bottoms and then on her skin. The victim told the appellant to go away. He took his hand away but stayed for a while, cuddling her. Eventually, after again being asked to go away, he left the bedroom.
Count 4 was another incident which occurred in the victim's bedroom. On this occasion, the appellant entered the bedroom, got into the victim's bed with the victim, then lightly squeezed her breast and rubbed her vagina over her pyjama bottoms. When the victim persistently told the appellant to go away, he cajoled her into giving him a cuddle. The appellant complained that he had not been given a proper cuddle, and persisted in staying in the room. Eventually, he left.
Counts 5 and 6 occurred on a single night when the family had been watching television together in the lounge room. Once the appellant was alone with the victim, he pulled her closer to him on the couch and put his arm around her. Then, after cuddling her, he touched her vagina on top of her clothing (count 5). The victim left the lounge room. The appellant tried to persuade her to return to cuddle him. The victim, instead, went to her bedroom. The appellant entered her bedroom, gently pushed her onto the bed, and then stood over her, removing her pyjama bottoms and underwear. The victim unsuccessfully tried to prevent this from occurring. The appellant then rubbed his fingers on the victim's vagina (count 6). The victim tried to prevent what was happening by trying to get up and by crossing her legs. The appellant responded by keeping her down and moving her legs apart. He did so with some degree of force, although, as her Honour found, not a lot of force was needed.
Count 7 is the charge of attempted indecent dealing. This was a further offence, which occurred in the victim's bedroom when she was lying on her bed. The appellant came into the victim's bedroom and lay down next to her. The victim got up to leave, but the appellant pulled her back onto the bed and attempted to touch her vagina. Although he got very close to doing so, he did not complete the offence. The victim kicked at the appellant, who then got off the bed. At this point, the victim got up too and told him to go away. The appellant said that he would leave if she hugged him. She hugged him and then she went to the kitchen. The appellant followed her and asked for another hug, on the basis that if she did so, he would leave her alone. The victim hugged him and returned to her bedroom.
Count 8 occurred on an occasion when the victim woke up from her sleep and went into the lounge room. There, she found the appellant watching television. The appellant asked her to watch what was described in the sentencing remarks as an inappropriate video (meaning a video that showed naked people) with him. The victim said no. Later, after the appellant went to his bedroom, he called out to the victim on several occasions to come into his bedroom to watch videos. Eventually, the victim came to his bedroom where she found him standing, naked, in the doorway. The sentencing judge found that the appellant did this deliberately, with the intention of the victim seeing him naked.
Count 9 occurred in the victim's bedroom while she was at her dressing table, looking at her iPad. The appellant entered the bedroom and stood behind the victim, with his chest and stomach touching her back. He reached his hands around her hips and rubbed her vagina on top of her shorts. The appellant then slipped his hand into the victim's shorts and underwear and rubbed her vagina with his fingers, on her skin. The touching did not last long because the victim walked away and told the appellant to leave her alone. The appellant told the victim to give him a kiss or a cuddle, and then he would leave her alone. The victim hugged the appellant, after which he left the room.
Count 1, which was the last time the offending occurred, took place in the lounge room while the victim was playing on her Wii. The appellant came into the room, wearing his boxer shorts, and sat next to the victim. He then put his arm around her, put his hand on her knee and then slid his hand up to her vagina, rubbing it over her shorts. The victim asked him to stop, which he did, but he then touched her in the same way again. The victim got up and left the room. The appellant followed her into her bedroom, where he sat down on the corner of the bed while she watched YouTube. The victim told him to go away, which he eventually did.
On 26 January 2021, the victim told her mother about the offending. She was interviewed by police the following day. The appellant's relationship with the victim's mother came to an end.
On 27 January 2021, the appellant was arrested for the offences he had allegedly committed against the victim. The police seized the appellant's laptop. The appellant gave the police the password. When the contents of the appellant's laptop were examined, it was found to contain six videos depicting penetrative sex by an adult male on a female child. The material depicted graphic sexual penetration, including of very young children, one of whom looked no more than 3 or 4 years old. The sentencing judge described the material as 'graphic and revolting and depicts serious criminal offences being committed against real children'.[2] It is this material which is the subject of the CEM offence.
[2] Sentencing ts 7.
The sentencing judge rejected the appellant's claim that he came across the CEM involuntarily, and immediately deleted it. However, the sentencing judge accepted that the appellant had, at some point, deleted it.
Victim impact statement
Her Honour referred to the victim impact statement in her sentencing remarks. The offending has affected the victim's sleep, self‑confidence, trust and sense of safety. Her school life has suffered. She has missed out on doing things that she loved, like spending time with her friends. The victim has suffered from panic attacks and finds it hard to trust people. The sentencing judge found that there was a high likelihood that the victim would suffer long term damage in terms of how she will relate to people in the future including any intimate partners or children she might have.[3]
[3] Sentencing ts 8 - 9.
The appellant's personal circumstances
The sentencing judge's summary of the appellant's personal circumstances drew from a number of sources, including a court‑ordered psychological report written by Mr Bart Wszola dated 4 December 2022, a number of character references which speak well of him, and written sentencing submissions by the appellant's lawyer.
The appellant was 33 years old at the time he was sentenced. His parents separated when he was around 12 months old. Initially he lived with his mother but later went to live with his father when he was 12 years old. He had a pro‑social upbringing, although he was unfortunately caught up in the conflict between his parents which had some adverse psychological effects upon him. The appellant has a good relationship with his father with whom he lived at the time he was sentenced. The appellant has a good work record.
An aspect of the appellant's functioning relevant to his risk of sexual re‑offending is the presence of a preoccupation with sex. According to Mr Wszola:
The most likely scenario where (the appellant) could reoffend in a similar manner would involve him failing to address his coping skill deficits and relying on sexual activity as a coping strategy.
The appellant and his then partner had experienced a miscarriage around the time that the offending began. The appellant was also experiencing the stress of being a fly‑in/fly‑out worker, which impacted his relationship.
The appellant has a short criminal record for traffic‑related offences. He has never been convicted of any violent or sexual offences.
The sentencing remarks
Her Honour found that the appellant's offending had a number of serious features including that:
(a)the touching constituted a gross breach of trust of both the victim and his then partner;
(b)the victim was, at the time of the offences, aged between 10 and 11 years;
(c)a degree of force was used in the offending, albeit not a significant degree of force, and that it must have been clear to the appellant that the victim was 'unhappy' about what he was doing because she repeatedly asked him to stop and leave her alone;
(d)the appellant manipulated the victim by telling her that she could not tell her mother or he would be in trouble and would no longer be in her life, meaning he could not pay for nice things;
(e)the offending occurred over an extended period of 18 months;
(f)the offences were representative of a course of ongoing sexualised conduct towards the victim over the period of the offending; and
(g)the offending has had a significant negative impact upon the victim.
Her Honour characterised the offending against the victim as 'very serious'.[4]
[4] Sentencing ts 11.
In respect of the offence of possession of CEM, her Honour observed that the videos depicted real victims of sexual abuse offences. She characterised the offence as 'serious'.[5]
[5] Sentencing ts 12.
The sentencing judge said that she gave some mitigation to the appellant's childhood, to his generally pro-social life and his constant work record. She said that there was no reason to think that he was a person who is generally lawless or anti-social. Her Honour noted that the appellant has good family support which increased his prospect of rehabilitation upon his release.
As the appellant did not plead guilty to any of the offences with respect to the victim there could be no discount for a plea of guilty or for remorse. The appellant maintained his stance of denial and did not accept responsibility for what he had done.
In respect of the CEM offence, her Honour, while acknowledging that the appellant entered a late plea, appears to have overlooked giving a discount for the plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA). There is no ground of appeal in respect of this omission. Counsel for the appellant accepted that the omission was not material to the sentencing outcome in this case as any reduction for the plea of guilty would have been, in light of its lateness, modest and the sentence that was imposed for the CEM was ordered to be wholly concurrent. In any event, we are satisfied that no different sentence should have been imposed.
The submissions of the appellant
The appellant submits that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle having regard to the nature of the offending, the mitigating factors that were available to the appellant and the outcomes of cases said to be comparable. In terms of the comparable cases, in her oral submissions, counsel for the appellant focussed on MNA v The State of Western Australia;[6] JAW v The State of Western Australia;[7] Lakay v The State of Western Australia;[8] and McNally v The State of Western Australia.[9]
[6] MNA v The State of Western Australia [2020] WASCA 84.
[7] JAW v The State of Western Australia [2016] WASCA 40 (JAW (2016)).
[8] Lakay v The State of Western Australia [2019] WASCA 46.
[9] McNally v The State of Western Australia [2019] WASCA 93.
Legal principles
The following legal principles are well established.
As described by McLure JA in Roffey v The State of Western Australia,[10] the first limb of the totality principle provides that the total effective sentence imposed must 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 referrable to the offender personally.
[10] Roffey v The State of Western Australia [2007] WASCA 246 [24].
An alleged infringement of the first limb of the totality principle alleges an implied material error. An appellate court can only intervene if such an error is established. An appellate court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion differently.
The real question in this appeal is whether the overall total effective sentence of 6 years' imprisonment is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred.[11]
[11] OTR v The State of Western Australia [No 2] [2022] WASCA 123 [54].
The principles in relation to sentencing for sexual offending against children include:[12]
(1)There is no tariff for sexual offences against children.
(2)The primary sentencing considerations for such offending are appropriate punishment of the offender and general and personal deterrence.
(3)Matters personal to an offender will ordinarily carry less weight.
(4)In particular, the circumstance that an offender is otherwise of prior good character has little weight in cases of sexual offending against children. The offending is of such a nature that, until revealed, it generally will not impinge on others and will not affect their perception of the offender. Such offending can exist comfortably with an otherwise apparent good character.
[12] OTR [55].
Generally speaking, some cumulation of individual sentences is to be expected where there is, as in the present case, repetitive and prolonged sexual offending against an individual child. This reflects the increased likelihood of significant enduring harm that comes with such repetitive and prolonged sexual abuse, and reflects the fact that the offender has not simply given way to impulse on an occasion.[13] In deciding whether a total effective sentence infringes the first limb of the totality principle it is relevant to refer to broadly comparable cases. However, it must be recognised that the utility of comparable cases is usually limited. While providing broad guidance there will often be significant differences in the circumstances of the offending and the offenders. For example, there will often be a different mix of offences rendering the comparison of limited utility. See OTR [61] ‑ [62].
[13] OTR [57].
Disposition
We will not repeat the serious features of the appellant's offending identified at [26] above. In combination, they reveal, in our opinion, a high degree of criminality. The appellant took advantage of a vulnerable young child by persistently sexual abusing her over a period of at least 18 months. The offences were particularly aggravated by the use of a degree of force and that the appellant frequently persisted when the victim made it clear to him that she did not want him to touch her. The appellant sought to manipulate the victim by telling her that if she complained about his actions he would be out of her life and he would be unable to pay for the things that she liked. The appellant touched the victim's vagina both over and under the clothing and was undeterred by her protests and attempts to resist this behaviour.
The appellant's actions have had and are likely to have an ongoing adverse effect upon the victim.
The mitigating factors were not of great weight. The appellant's relatively favourable personal circumstances carry less significance because of the need to properly punish the appellant and provide appropriate general and personal deterrence.
The cases upon which the appellant's counsel focussed in her oral submissions are, in reality, of little or no assistance. MNA concerned an offender who had been convicted after trial of two counts of indecent dealing against two female complainants for which he received a total effective sentence of 2 years 6 months' immediate imprisonment. The appeal concerned only the offender's convictions and not the sentence that was imposed. MNA provides no basis upon which to impugn the total effective sentence imposed in the present case.
While Lakay and McNally are appeals against sentence, both concern offences of sexual penetration without consent against adult victims. The facts and circumstances of these cases are very far removed from the present case and provide no guidance to this court in its task of ascertaining whether the total effective sentence imposed upon the appellant infringed the first limb of the totality principle.
This leaves JAW (2016). In JAW (2016), the appellant was convicted after trial of eight counts of indecently dealing with a child under the age of 13 years, five counts of sexually penetrating a child under the age of 13 years and one count of possession of child pornography. He was sentenced to a total effective sentence of 7 years' imprisonment with parole eligibility. The offender in JAW (2016) appealed against both conviction and sentence. JAW (2016) does not point to error in the present case because in disposing of the appeal against sentence, it was held that the appellant had fallen a long way short of demonstrating a reasonably arguable case of implied error with respect to the individual sentences and the total effective sentence.[14] In other words, the ground of appeal in JAW (2016) which alleged an infringement of the first limb of the totality principle was completely unmeritorious.
[14] JAW (2016) [155].
In the appellant's written submissions reference was made to other cases said to be comparable, including VIM v The State of Western Australia;[15] JAW v The State of Western Australia;[16] ERA v The State of Western Australia;[17] JJR v The State of Western Australia;[18] LYN v The State of Western Australia;[19] JDF v The State of Western Australia;[20] and WNO v The State of Western Australia.[21] It is unnecessary to relate the facts and circumstances of these cases. They do not assist the appellant's claim of implied error.
[15] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1.
[16] JAW v The State of Western Australia [2012] WASCA 7 (JAW (2012)).
[17] ERA v The State of Western Australia [2013] WASCA 163.
[18] JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209.
[19] LYN v The State of Western Australia [2019] WASCA 45.
[20] JDF v The State of Western Australia [2016] WASCA 221.
[21] WNO v The State of Western Australia [2021] WASCA 141.
In our opinion, having regard to all of the relevant facts and circumstances of the present case and all relevant sentencing factors, the total effective sentence of 6 years' imprisonment bears a proper relationship to the overall criminality involved in all of the offences committed by the appellant. The total effective sentence was within the range open on a proper exercise of the sentencing discretion, having regard to the maximum penalties for the offences, the criminality involved in the offending taken as a whole, the effect the offending has had and will have on the victim, the need to provide proper punishment and general and personal deterrence, the appellant's personal circumstances, the mitigating factors and the total effective sentences imposed in other cases.
Implied error has not been demonstrated. The first limb of the totality principle has not been infringed. The proposed grounds of appeal have no reasonable prospect of succeeding. Leave to appeal must be refused and the appeal dismissed.
The orders we would make are as follows:
1.Leave to appeal on grounds 1 and 2 refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IB
Research Associate to the Honourable Justice Mazza
30 MAY 2023
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